Incremental Commitments. (1) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that: (i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations; (ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans; (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment; (iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans); (v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 5 contracts
Sources: Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.)
Incremental Commitments. (1a) The Borrower maySo long as no Default or Event of Default then exists or would result therefrom, by written notice to the Borrowers shall have the right, in 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 or the Administrative Agent, to request at any time and from time to timetime after the Closing Date and prior to the Final Maturity Date, request Incremental Term Loan Commitments not to exceed $100,000,000 from that one or more Lenders (and/or one or more other Persons which are Eligible AssigneesTransferees and which will become Lenders as provided below) provide Incremental Commitments and make Revolving Loans and participate in Swingline Loans and Letters of Credit pursuant thereto, in each caseit being understood and agreed, however, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but i) no such Lender shall be required obligated to participate in provide an Incremental Commitment as a result of any such Incremental Term Loan without its consent) request by the Borrowers, and shall be subject to until such consentstime, if any, as would 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 2.15, such Lender shall not be required obligated to fund any Revolving Loans or participate in connection with an assignment Swingline Loans or Letters of a Term Loan Credit in excess of its Commitment as in effect prior to giving effect to such PersonIncremental Commitment provided pursuant to this Section 2.15, (ii) willing any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which this Section 2.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender) of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of $10,000,000 all Incremental Commitments provided pursuant to this Section 2.15, shall not exceed the Maximum Incremental Commitment Amount and minimum increments of $10,000,000(v) all Revolving Loans (and all interest, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agentfees and other amounts payable thereon), (ii) whether the Incremental Term Loans to be borrowed made pursuant to such an Incremental Term Loan Commitments are Commitment shall be entitled to be an increase in any existing Class the benefits of Term Loans or the guarantees and security provided under the Credit Documents to the other Obligations on a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)pari passu basis.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.15, each Borrower, the Administrative Agent and any each such Lender or other Person whose consent is required as provided above Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Commitment Agreement, with the effectiveness of such other documentation as Incremental Lender’s Incremental Commitment to occur on the Administrative Agent shall reasonably specify to evidence the date set forth in such Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by Commitment Agreement, which date in any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans event shall be no earlier than the then Latest Maturity Date date on which (w) 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 up-front or arrangement fees owing to the Administrative Agent (or any Affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.15 shall have been satisfied, and (Bz) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied; provided, that interest rate margins may be greater than those applicable to the existing Revolving Loans so long as the applicable margins on all Revolving Loans are increased to match those on the Incremental Commitments. The fees applicable to the Incremental Commitments shall be agreed upon by the Borrowers, the Administrative Agent and the Incremental Lenders. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Weighted Average Life to Maturity of any Incremental Term Loans Total Commitment under, and for all purposes of, this Agreement shall be no shorter than increased by the remaining Weighted Average Life aggregate amount of such Incremental Commitments, (ii) if the Total Commitment is then being increased and the relevant Incremental Commitment Agreement so provides, the Total European Sub-Limit and/or the Total Canadian Sub-Limit shall be increased by the amount specified in such Incremental Commitment Agreement (not to Maturity exceed the amount of any then outstanding Class of Term Loans;
the related Incremental Commitment); (iii) no Schedule I-A shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) to the extent requested by any Incremental Term Lender, Revolving Loan shall participate on Notes will be issued, at the expense of each applicable Borrower, to such Incremental Lender in conformity with the requirements of Section 2.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 2.15, the Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders), even though as a greater result thereof such new Loans (to the extent required to be maintained as B/A Equivalent Loans or Euro Rate Loans) may have a shorter Interest Period than pro rata basis with the then outstanding Term Loans Borrowings, of such Loans, in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between each case to the extent necessary so that all of the Lenders providing participate in each outstanding Borrowing of Revolving Loans pro rata on the applicable Incremental Term Loan basis of their respective Commitments (after giving effect to any increase in the Total Commitment) pursuant to this Section 2.15) and the with each affected Borrower (except that any Incremental Term Loans forming an addition being obligated 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 existing Class of Term Loans);
(v) subject pay to the above, respective Lenders any Incremental Term Loans shall be on terms costs of the type referred to in Section 2.11 and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loansamounts, as reasonably determined by the Borrower respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (except rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the extent that this Agreement is amended (which shall not require preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. Without limiting the consent of any Lender) to incorporate such more restrictive provisions for the benefit obligations of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective Borrowers under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 (and2.15(c), 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as the Lenders agree that they will use their commercially reasonable efforts to such matters as are reasonably requested by attempt to minimize the Administrative Agent. Upon any increase costs of the type referred to in Section 2.11 that the Borrowers would otherwise incur in connection with the implementation of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderIncremental Commitments.
Appears in 4 contracts
Sources: Credit Agreement (Aleris Ohio Management, Inc.), Credit Agreement (Aleris Ohio Management, Inc.), Credit Agreement (Aleris Ohio Management, Inc.)
Incremental Commitments. (1) The Borrower Company may, by written upon five (5) Business Days’ notice to the Administrative Agent from time to timeAgent, request Incremental Term increase the Revolving Loan Commitments not to exceed $100,000,000 from Commitment amount by adding one or more Eligible Assigneeslenders or increasing the Revolving Loan Commitment of a Lender, determined by the Company in its sole discretion, subject to the consent of the Administrative Agent, Swingline Lender and Issuing Banks (such consent not to be unreasonably withheld), which lender or lenders are willing to commit to such increase (each casesuch lender, a “New Lender,” and such commitment, the “Incremental Commitment”); provided, however, that is (i) the Company may not elect any Incremental Commitment after the occurrence and during the continuance of an Event of Default, including, without limitation, any Event of Default that would result after giving effect to any Incremental Commitment, (ii) each Incremental Commitment shall be in an amount not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (iii) after giving effect to all Incremental Commitments the aggregate Revolving Loan Commitments shall not exceed the Dollar Equivalent of $8,000,000,000 and (iv) on the effective date of the Incremental Commitment, each New Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Revolving Loan Commitments. An Incremental Commitment shall become effective upon the execution by each applicable New Lender of a Farm Credit Lender counterpart of this Agreement and delivering such counterpart to the Administrative Agent. Over the term of the Agreement the Company shall increase the Revolving Loan Commitments no more than five (which5) times. Notwithstanding anything to the contrary in this Agreement, any Incremental Commitment made pursuant to this Section 2.14 may be effected by adding one or more tranches of Revolving Loan Commitments that are denominated in each casean Alternative Currency and/or term loan commitments (which shall be deemed to be “Revolving Loan Commitments” for purposes of this Section 2.14 (other than clause (iv) above)), and the Lenders agree that any amendment required to implement an Incremental Commitment may include be effected by the consent of the Company and only those Lenders that agree to participate in any existing Lender (but such tranche, provided that the aggregate amount of the commitments do not exceed the Dollar Equivalent of $8,000,000,000 at any time. Notwithstanding anything to the contrary herein, no such Lender shall be required to participate in any such Incremental Term Loan without increase its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment Commitment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender2.14.
Appears in 3 contracts
Sources: Third Amended and Restated Multicurrency Revolving Credit Agreement (American Tower Corp /Ma/), Multicurrency Revolving Credit Agreement (American Tower Corp /Ma/), Multicurrency Revolving Credit Agreement (American Tower Corp /Ma/)
Incremental Commitments. (1a) The After the Spinoff Date has occurred, the Borrower Representative may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Banks (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 requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the 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 shallshall together with any then outstanding Initial Term A Loans, unless otherwise agreed by as applicable, form a single Class of) the Administrative AgentInitial Term A Loans or (y) commitments to make term loans with pricing, be not less than ten Business Days after maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredInitial Term A Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent applicable Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any (x) commitments to make additional Initial Term A Loans shall not be guaranteed by any Subsidiaries have the same terms as the Initial Term A Loans, and shall form part of the Borrower that do not guarantee the existing same Class of Initial Term A Loans and (y) Incremental Revolving Facility Commitments shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;outstanding 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 latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank equally and ratably in right of security with the existing Loans,
(iii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to the Term Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date and participation in mandatory prepayments (Bwhich shall, subject to the other clauses of this proviso, be determined by the applicable Borrower and the applicable Incremental Term Lenders in their sole discretion), shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(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 any then outstanding Class of the Term Loans;Loans with the longest remaining Weighted Average Life to Maturity,
(iiiv) no the Borrowers shall be in Pro Forma Compliance immediately after giving effect to the incurrence of such Incremental Facility and the use of proceeds thereof with the Financial Covenant as of the last day of the then most recently ended Test Period; provided that in the case of any Incremental Facility used to finance a Permitted Acquisition, and to the extent the Incremental Term Loan Lenders participating in such Incremental Facility agree, this clause (v) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Acquisition,
(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 with basis) than the then outstanding Initial Term A Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) there shall be no borrower (other than a Borrower) or guarantor (other than the Loan Parties) in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, and
(viii) Incremental Term Loans and Incremental Revolving Facility Commitments shall have such interest ratesnot be secured by any asset of Parent or its Subsidiaries other than then Collateral. Each party hereto hereby agrees that, optional prepayment provisions 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 fees as may be agreed between terms of the Lenders providing the applicable 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 “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower Representative’s consent (except that any Incremental Term Loans forming an addition not to an existing Class of Term Loans shall have be unreasonably withheld) and furnished to the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);parties hereto.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Permitted Acquisition, to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Acquisition (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving pro forma effect to such tranche of Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromLoans); (xii) the conditions representations and warranties of the applicable Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother 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 Permitted 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 such that the availability of such Incremental Term Loans shall only be subject to the accuracy of customary “specified representations” and those representations of the seller or the target company (bas applicable) included in the acquisition agreement related to such Permitted Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, the Lenders and only to the extent that Parent or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall 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 Incremental Term Loans), 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, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 3 contracts
Sources: Credit Agreement (Adient PLC), Credit Agreement (Johnson Controls Inc), Credit Agreement (Adient LTD)
Incremental Commitments. (1) The Borrower Company may, by written upon five (5) Business Days’ notice to the Administrative Agent from time to timeAgent, request Incremental Term increase the Revolving Loan Commitments not to exceed $100,000,000 from Commitment amount by adding one or more Eligible Assigneeslenders or increasing the Revolving Loan Commitment of a Lender, determined by the Company in its sole discretion, subject to the consent of the Administrative Agent, Swingline Lender and Issuing Banks (such consent not to be unreasonably withheld), which lender or lenders are willing to commit to such increase (each casesuch lender, a “New Lender,” and such commitment, the “Incremental Commitment”); provided, however, that is (i) the Company may not elect any Incremental Commitment after the occurrence and during the continuance of an Event of Default, including, without limitation, any Event of Default that would result after giving effect to any Incremental Commitment, (ii) each Incremental Commitment shall be in an amount not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (iii) after giving effect to all Incremental Commitments the aggregate Revolving Loan Commitments shall not exceed the Dollar Equivalent of $5,500,000,000 and (iv) on the effective date of the Incremental Commitment, each New Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Revolving Loan Commitments. An Incremental Commitment shall become effective upon the execution by each applicable New Lender of a Farm Credit Lender counterpart of this Agreement and delivering such counterpart to the Administrative Agent. Over the term of the Agreement the Company shall increase the Revolving Loan Commitments no more than five (which5) times. Notwithstanding anything to the contrary in this Agreement, any Incremental Commitment made pursuant to this Section 2.14 may be effected by adding one or more tranches of Revolving Loan Commitments that are denominated in each casean Alternative Currency and/or term loan commitments (which shall be deemed to be “Revolving Loan Commitments” for purposes of this Section 2.14 (other than clause (iv) above)), and the Lenders agree that any amendment required to implement an Incremental Commitment may include be effected by the consent of the Company and only those Lenders that agree to participate in any existing Lender (but such tranche, provided that the aggregate amount of the commitments do not exceed the Dollar Equivalent of $5,500,000,000 at any time. Notwithstanding anything to the contrary herein, no such Lender shall be required to participate in any such Incremental Term Loan without increase its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment Commitment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender2.14.
Appears in 3 contracts
Sources: Revolving Credit Agreement (American Tower Corp /Ma/), Revolving Credit Agreement (American Tower Corp /Ma/), Revolving Credit Agreement (American Tower Corp /Ma/)
Incremental Commitments. (1a) The Borrower mayAgent shall have the right, by written notice to 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 Agent or the Lenders (except, in either case, as otherwise expressly provided in this Section 2.15), to request at any time and from time to timetime after the Closing Date and prior to the Final Maturity Date that the Lenders provide Incremental Commitments and, request subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible AssigneesCommitment Agreement, make Revolving Loans and participate in each case, Letters of Credit pursuant thereto; provided that is a Farm Credit Lender (which, in each case, may include any existing Lender (but i) no such Lender shall be required obligated to participate in any provide an Incremental Commitment and, until such Incremental Term Loan without its consent) and shall be subject to such consentstime, if any, as would such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent and the Borrower Agent an Incremental Commitment Agreement as provided in clause (b) of this Section 2.15, no Lender shall be required obligated to fund any Revolving Loans in connection with an assignment excess of a Term its Revolving Loan Commitment (if any) or participate in any Letters of Credit in excess of its RL Percentage (subject to Section 2.14(b)(i)), in each case as in effect prior to giving effect to such PersonIncremental Commitment provided pursuant to this Section 2.15, (ii) willing to each Lender (and any other Person who is not a Lender but shall become a Lender upon providing an Incremental Commitment) shall only provide such an Incremental Term Loans in their sole discretion Commitment with the consent of the Administrative Agent, (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.15 of at least $10,000,000 and minimum increments of $10,000,000, 5,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of Incremental Term Commitments permitted to be provided pursuant to this Section 2.15 at any time shall not exceed the Available Incremental Amount at such time (prior to giving effect to such Incremental Commitments), (v) the Borrower Agent shall not increase the Total Revolving Loan Commitment pursuant to this Section 2.15 more than two times, (vi) the Applicable Margins with respect to Revolving Loans to be borrowed incurred pursuant to such an Incremental Term Loan Commitments are Commitment shall be the same as those applicable to be an increase in any existing Class of Term Loans or a new Class of Term other Revolving Loans and (iiivii) all Revolving Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date other applicable Loan Documents and shall be secured by the relevant Security Documents, and guaranteed under the Guarantee Agreement, on which such a pari passu basis with all other Loans (and related Obligations) secured by each relevant Security Document and guaranteed under the Guarantee Agreement, and each Lender agreeing to provide an Incremental Term Loan Commitments are requested Commitment pursuant to become effective (which an Incremental Commitment Agreement shall, unless otherwise agreed by subject to the Administrative Agentsatisfaction of the relevant conditions set forth in this Agreement, be not less than ten Business Days after participate in Letters of Credit pursuant to Section 3.04 and make Revolving Loans as provided in Section 2.01, and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the date such notice is delivered)other applicable Loan Documents.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.15, (I) the Borrower Agent, each Guarantor, the Administrative Agent and any other Person whose each Issuing Lender (if the consent of each Issuing Lender is required pursuant to Section 2.15(a)(ii)) and each such Lender which agrees to provide an Incremental Commitment (each an “Incremental Lender”) shall execute and deliver to the Borrower Agent and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the 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 (i) all fees required to be paid, which shall not exceed the fees payable in connection with the Revolving Loan Commitments on the Closing Date, in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.15 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied) and (II) the Borrower Agent, each Guarantor, the Collateral Agent and each Incremental Lender, as provided above applicable, shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Collateral Agent amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Term Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment. Each Additional Credit Extension Amendment Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Loan Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) Section 2.15, the Borrower Agent shall specify the terms repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing Lenders); and
Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateTotal Revolving Loan Commitment pursuant to this Section 2.15) and use with the Borrower Agent being obligated to pay to the respective Lenders any costs of proceeds therefromthe type referred to in Section 2.11 in connection with any such repayment and/or Borrowing.
(e) For the avoidance of doubt, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall not have received documents and legal opinions as the right to such matters as are reasonably requested by request any Incremental Commitments from any Person other than the Administrative Agent. Upon any increase Lenders party to the Credit Agreement at the time of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderrequest.
Appears in 3 contracts
Sources: Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.)
Incremental Commitments. (1a) The Borrower Representative may, at any time or from time to time after the Closing Date, by written notice to the Administrative Agent from time (whereupon the Administrative Agent shall promptly deliver a copy to timeeach of the Lenders), request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees, increases in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Commitments (each such increase, a “Commitment Increase” and any Lender making such a commitment, an “Incremental Term Loan Commitments being requested (Lender”), which shall may be in a minimum amount allocated to the Maximum U.S. Credit Amount and/or the Maximum Canadian Credit Amount at the discretion of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Borrower Representative upon notice to the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) after giving effect to any such Commitment Increase, the Incremental Term Loans aggregate amount of Commitment Increases shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligationsexceed an amount equal to $100,000,000;
(ii) (A) extensions of credit or other obligations of the Maturity Date Loan Parties under any Commitment Increase shall rank pari passu in right of any Incremental Term Loans shall be no earlier than payment and of security with the then Latest Maturity Date other extensions of credit and (B) obligations of the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term LoansLoan Parties hereunder;
(iii) no Incremental Term Loan Commitments under any Commitment Increase shall participate on a greater not terminate, and amounts advanced under any Commitment Increase shall not mature, earlier than pro rata basis with the then outstanding Term Loans in any mandatory prepaymentRevolving Termination Date;
(iv) Incremental Term Loans all Commitments under any Commitment Increase (and extensions of credit thereunder) shall have such interest rates, optional prepayment provisions be subject to the terms and fees as may 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 conditions (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are notAdvances, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent Letters of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)Credit and Commitments hereunder; and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (wv) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(g)) shall exist on the Incremental Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving pro forma effect to such Incremental Term Loan any Advances made thereunder).
(b) Each notice from the Borrower Representative to the Administrative Agent pursuant to Section 2.23(a) shall set forth the requested amount and proposed terms of the relevant Commitment Increase. All fees applicable to a Commitment Increase shall be determined by the Borrower Representative, the Administrative Agent and the incurrence Lenders participating in such Commitment Increase.
(c) Commitment Increases may be provided by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to provide a portion of Indebtedness thereunder any Commitment Increase without such Lender’s prior written consent and use nothing in this Section 2.23 shall constitute a commitment by any Lender to provide a portion of proceeds therefromany such Commitment Increase), in each case on terms permitted in this Section 2.23; provided that the Administrative Agent and the Issuing Banks shall have consented (xsuch consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 10.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that the Issuing Banks shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to any Commitment Increase provided by any Additional Lender. Commitments in respect of Commitment Increases shall become Commitments, U.S. Revolving Commitments and/or Canadian Revolving Commitments, as applicable (or in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment, U.S. Revolving Commitment and/or Canadian Revolving Commitment, as applicable), under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the relevant Borrowers, 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 opinion of the Administrative Agent and the Borrower Representative, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be (unless waived by the Additional Lender) subject to the satisfaction of each of the conditions set forth in clauses Section 4.2 (ait being understood that all references to the date of such extension of credit or similar language in Section 4.2 shall be deemed to refer to the Incremental Closing Date) and such other conditions as the parties thereto shall agree (bthe effective date of any such Incremental Amendment, an “Incremental Closing Date”). U.S. Advances, Canadian Advances, U.S. Letters of Credit and Canadian Letters of Credit provided under any Commitment Increase shall constitute “U.S. Advances,” “Canadian Advances,” “U.S. Letters of Credit” and “Canadian Letters of Credit” hereunder and shall be subject to all the terms and conditions set forth herein.
(d) Upon each increase in Revolving Commitments under a Facility pursuant to this Section, each Revolving Lender under such Facility immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of Section 5.02 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 Revolving 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 such Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Commitment and if, on the date of such increase, there are satisfied whether any Advances outstanding, such Advances shall on or not a Credit Extension is made on such date (and, only prior to the extent effectiveness of such Commitment Increase either be prepaid from the proceeds of additional Advances made hereunder or assigned to a Borrowing is made on Commitment Increase Lender (in each case, reflecting such dateincrease in Commitments, clause (c) is required to be complied with); (y) on a such that Advances are held ratably in accordance with each Revolving Lender’s Pro Forma BasisRata Share, after giving effect to such Incremental Term Loans increase), which prepayment or assignment shall be accompanied by accrued interest on the Advances being prepaid and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested any costs incurred by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis Lender in accordance with Section 2.19. The Administrative Agent and the respective amount of Term Loans of such Class held by each LenderLenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding anything to the contrary herein, this Section 2.23 shall supersede any provisions in Section 10.1 to the contrary.
Appears in 3 contracts
Sources: Amendment No. 2 (JELD-WEN Holding, Inc.), Revolving Credit Agreement (JELD-WEN Holding, Inc.), Amendment No. 1 (JELD-WEN Holding, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments 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 and minimum increments of $10,000,000, 1,000,000 or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with terms identical to Term B Loans or commitments to make term loans with pricing terms, amortization, participation in mandatory prepayments or commitment reductions, maturity or other terms different from the date Term B Loans (“Other Term Loans”), and (iv) in the case of Incremental Revolving Facility Commitments, the terms of such notice is delivered)the terms of such Revolving Loans, including pricing terms, participation in mandatory prepayments or commitment reductions and maturity.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans or Incremental Revolving Facility Commitments; provided 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) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall not be guaranteed have (x) the same terms as the Term B Loans, as applicable, or (y) market terms (as determined in good faith by any Subsidiaries the Borrower) and as set forth in a certificate of a Financial Officer of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;Borrower,
(ii) the Other Term Loans shall be secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Term B Loans or, at the option of the Borrower, be secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Term B Loans (Aprovided, that if such Other Term Loans are secured by Liens on the Collateral that rank junior to 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, shall not be subject to clause (viii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest latest Term B Facility Maturity Date and in effect on the date of incurrence,
(Biv) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);,
(v) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the aboveclause (vi) and (vii) of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion and which, for the avoidance of doubt, may include a single financial covenant which would be customary in the market for financings of such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans type (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower in good faith)), the Revolving Loans shall have (except x) substantially the same terms as the Term B Loans (other than the addition of a Financial Performance Covenant) or (y) market terms (as determined in good faith by the Borrower) and as set forth in a certificate of a Financial Officer of the Borrower,
(vi) the Revolving Loans shall be secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Term B Loans and other Revolving Loans or, at the option of the Borrower, secured by Liens on the Collateral that rank junior to the extent Liens on the Collateral securing the Term B Loans and other Revolving Loans (provided, that this Agreement is amended if such Revolving Loans are secured by Liens on the Collateral that rank junior to the Liens securing the Term B Loans and/or other Revolving Loans, such Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(which shall not require vii) the consent final maturity date of any Lender) to incorporate such more restrictive provisions for Revolving Loans shall be no earlier than the benefit Term B Facility Maturity Date as of the then existing Lenders)date of the applicable Incremental Revolving Facility Assumption Agreement, and
(viii) with respect to any Other Term Loan that ranks pari passu in right of security with the Initial Term B Loans, (x) if the proceeds of such Other Term Loan are used to finance the acquisition of the Option Properties, the All-in Yield may exceed the All-in Yield in respect of the Initial Term B Loans, so long as:
(A) on the date of incurrence of such Other Term Loans, the Senior Secured Leverage Ratio on a Pro Forma Basis does not exceed 5.41 to 1.00; or
(B) in the event that on the date of incurrence of such Other Term Loans, the Senior Secured Leverage Ratio on a Pro Forma Basis exceeds 5.41 to 1.00, then:
(1) if the Other Term Loans are incurred by a Loan Party prior to the first anniversary of the Closing Date, the All-in Yield of the Initial Term B Loans shall be increased by an amount equal to the lesser of (A) 1.50% and (B) the difference between (i) the All-in Yield of such Other Term Loans and (ii) the All-in Yield of the Initial Term B Loans;
(2) if the Other Term Loans are incurred by a Loan Party on or after the first anniversary of the Closing Date but prior to the second anniversary of the Closing Date, the All-in Yield of the Initial Term B Loans shall be increased by an amount equal to the lesser of (A) 1.25% and (B) the difference between (i) All-in Yield of such Other Term Loans and (ii) the All-in Yield of Initial Term B Loans;
(3) if the Other Term Loans are incurred by a Loan Party on or after the second anniversary of the Effective Date but prior to third anniversary of the Closing Date, the All-in Yield of the Initial Term B Loans shall be increased by an amount equal to the lesser of (A) 0.75% and (B) the difference between (i) All-in Yield of such Other Term Loans and (ii) the All-in Yield of Initial Term B Loans; and
(vi4) subject if the Other Term Loans are incurred by a Loan Party on or after the third anniversary of the Effective Date but prior to Section 1.06fourth anniversary of the Closing Date, no Incremental the All-in Yield of the Initial Term Loan Commitment B Loans shall become effective under this Section 2.01(bbe increased by an amount equal to the lesser of (A) unless 0.25% and (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (xB) the conditions set forth difference between (i) All-in clauses (a) and (b) Yield 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 Other Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by All-in Yield of Initial Term B Loans: or
(C) the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Other Term Loans are incurred after the fourth anniversary of such Class held by each Lender.the Closing Date; or
Appears in 2 contracts
Sources: First Lien Credit Agreement (Vici Properties Inc.), First Lien Credit Agreement (Vici Properties Inc.)
Incremental Commitments. (1a) The Borrower mayHoldings shall have the right, by written notice in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.14) or the Lenders, to request at any time and from time to time after the Funding Date and prior to the Revolving Loan Maturity Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment, 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 from time Agent, Holdings and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to timefund any Revolving Loans in excess of its U.S. Facility Commitment or Canadian Facility Commitment, request Incremental Term Loan Commitments not to exceed $100,000,000 from one as applicable, (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its U.S. Facility RL Percentage or Canadian Facility RL Percentage, as applicable, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14, (ii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of the Administrative Agent or any other Lender; provided that any Person that is not a Farm Credit Lender prior to the effectiveness of its Incremental Commitment shall require the consent of the Administrative Agent, each Issuing Lender, the Swingline Lender and the Fronting Lender (which, in each case, may include any existing Lender unless such Person will not be a Participating Specified Foreign Currency Lender) (but no such Lender which consents shall not be required to participate in any such Incremental Term Loan without its consentunreasonably withheld or delayed) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such an Incremental Term Loans in their sole discretion Commitment pursuant to this Section 2.14, (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.14 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, 25,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Commitments permitted to be provided pursuant to this Section 2.14 shall not exceed in the aggregate $150,000,000, (v) Holdings shall not increase the Commitments pursuant to this Section 2.14 more than 3 times in the aggregate, (vi) if the Applicable Commitment Fee Percentage and/or Applicable Margins with respect to Commitments to be provided or Loans to be borrowed incurred pursuant to such an Incremental Term Loan Commitments are to Commitment shall be an increase higher in any existing Class respect than those applicable to any other Commitments or Loans, the Applicable Commitment Fee Percentage and/or Applicable Margins, as the case may be, for the other Commitments and Loans and extension of Term credit hereunder shall be automatically increased as and to the extent needed to eliminate any deficiencies in accordance with the definition of “Applicable Commitment Fee Percentage” or “Applicable Margin” contained herein (such increase, the “Additional Commitment Fee” or “Additional Margin”, as the case may be), (vii) each Incremental Commitment Agreement shall specifically designate the Tranche of the Incremental Commitments being provided thereunder, (viii) all Revolving Loans of a Borrower incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Loan Documents and shall be secured by the relevant Security Documents, and guaranteed under the Guarantee and Collateral Agreement and/or Canadian Guarantee and Collateral Agreement, on a pari passu basis with all other Loans of such Borrower secured by each relevant Security Document and guaranteed under the Guarantee and Collateral Agreement and/or Canadian Guarantee and Collateral Agreement, and (ix) each Lender (including any Person which is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a), in each case, under the U.S. Facility Commitment or Canadian Facility Commitment, as applicable, and such Revolving Loans shall constitute U.S. Facility Revolving Loans or a new Class Canadian Facility Revolving Loans, as the case may be, for all purposes of Term Loans this Agreement and (iii) the date on which such Incremental Term other applicable Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)Documents.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.14, (I) Holdings, each other Borrower, each Guarantor, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to Holdings and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the 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 (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.14 shall have been satisfied and (iv) all other Person whose consent is required conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied) and (II) Holdings, each other Borrower, each Guarantor, the Security Agent and each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and the Security Agent such other documentation additional Security Documents and/or amendments to the Security Documents as the Administrative Agent shall may reasonably specify request which are necessary to evidence ensure that all Loans incurred pursuant to the Incremental Term Commitments and any Additional Commitment Fee and/or Additional Margin are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the U.S. Facility Commitment and/or the Canadian Facility Commitment, as the case may be, and each Incremental Lender shall constitute a U.S. Facility Lender and/or Canadian Facility Lender, as applicable, for all purposes of this Agreement and each other applicable Loan Commitment. Each Additional Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.14, each Borrower shall, in coordination with the terms Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing U.S. Facility Lenders and/or Canadian Lenders); and
, as applicable, participate in each outstanding Borrowing of each Tranche of Revolving Loans pro rata on the basis of their respective Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateTotal Commitment pursuant to this Section 2.14) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the Borrowers being obligated to pay to the respective amount Lenders any costs of Term Loans of the type referred to in Section 2.11 in connection with any such Class held by each Lenderrepayment and/or Borrowing.
Appears in 2 contracts
Sources: Abl Credit Agreement (Smurfit Stone Container Corp), Abl Credit Agreement (Smurfit Stone Container Corp)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, Persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion (discretion, all of the proceeds of which shall be used for working capital and general corporate purposes and for the payment of fees and expenses in connection with such Lenders, the “Incremental Term Loan Lenders”Commitments and/or Incremental Revolving Commitments; provided that each Incremental Revolving Lender providing a commitment to make revolving loans shall, to the extent the same would be required for an assignment under Section 9.04, be subject to the approval of the Administrative Agent, 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 Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,00025,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving 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 the initial Incremental Term Loans hereunder or term loans with terms identical to (and which shallshall together with any then outstanding Incremental Term Loans, unless otherwise agreed by as applicable, form a single Class of) the Administrative Agentthen initial Incremental Term Loans (if any) or (y) commitments to make term loans with pricing, be not less than ten Business Days after maturity, amortization, participation in mandatory prepayments, prepayment premiums and penalties and/or other terms different from the date such notice is deliveredthen outstanding Incremental Term Loans (if any) (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Commitments; provided provided, that:
(i) the any (x) commitments to make additional Incremental Term Loans (as opposed to Other Incremental Term Loans) shall not be guaranteed by any Subsidiaries have the same terms as the then outstanding Incremental Term Loans, and shall form part of the Borrower that do not guarantee the existing same Class of Incremental Term Loans and (y) Incremental Revolving Commitments shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligationsoutstanding Class of Revolving Commitments (or, if more than one Class of Revolving Commitments is then outstanding, the Revolving Commitments with the then latest maturity date) and shall require no scheduled amortization or mandatory commitment reduction prior to the latest maturity date applicable to the Commitments or Loans of any Class hereunder;
(ii) (A) the Maturity Date of any Incremental Term Loans (other than the Other Incremental Term Loans), unless agreed to by any such Other Incremental Term Loan Lenders, incurred pursuant to clause (a) of this Section 2.20 shall rank equally and ratably in right of security with the existing Loans;
(iii) the final maturity date of any such Incremental Term Loans (other than Other Incremental Term Loans) shall be no earlier than the latest maturity date applicable to the Commitments or Loans of any Class hereunder and in effect at the date of incurrence of such Incremental Term Loans (but may have amortization and customary prepayments prior to such date) and, except as to pricing, prepayment premiums and penalties, amortization, final maturity date and participation in mandatory prepayments (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), shall have (x) substantially the same terms as the Revolving Loans (in the case of the initial Incremental Term Loans) or the initial Incremental Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent; provided that (i) if the interest rate margins in respect of any Incremental Term Loans incurred on or prior to the date that is twelve (12) months after the Effective Date (determined with reference to each pricing tier of any applicable pricing grid) exceeds the interest rate margins for any other Incremental Term Loans outstanding at such time (the “Existing Incremental Term Loans”) (as reasonably determined by the Administrative Agent) by more than 0.50%, then Latest Maturity Date the interest rate margins for the Existing Incremental Term Loans shall be increased (including by way of inclusion of a pricing grid) so that the interest rate margins in respect of such Existing Incremental Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.50% (determined at each level of each applicable pricing grid); provided further that in determining the interest rate margin(s) applicable to each Incremental Term Loan and the interest rate margin(s) for the Existing Incremental Term Loans, (1) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such Incremental Term Loans or the Existing Incremental Term Loans in each case in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity, or, if the remaining life to maturity is less than four years, based on the actual Weighted Life to Maturity), (2) customary arrangement, underwriting, commitment or any similar fees payable to any arranger (or its affiliates) in connection with the Incremental Term Loans or to one or more arrangers (or their affiliates) of any Existing Incremental Term Loans shall be excluded and (B3) if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under the Existing Incremental Term Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Existing Incremental Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Existing Incremental Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Existing Incremental Term Loans shall be increased to the extent of such differential between interest rate floors;
(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,
(v) the Borrower shall be in compliance immediately prior to and after giving effect (including giving effect on a pro forma basis) to the incurrence of such Incremental Facility and the use of proceeds thereof with the financial covenants set forth in Section 6.10 (without giving effect to any then outstanding Class Acquisition Holiday) as of Term Loansthe last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04), as applicable;
(iiivi) there shall be no Incremental Term borrower (other than the Borrower) or guarantor (other than the Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Parties) in respect of any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any or 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 existing Class of Term Loans)Revolving Commitments;
(vvii) subject to any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the above, terms of any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)Facility; and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 2 contracts
Sources: Credit Agreement (Myriad Genetics Inc), Credit Agreement (Myriad Genetics Inc)
Incremental Commitments. (1a) The Borrower mayCompany and any one or more Banks (including New Banks) may from time to time agree that such Banks shall make, obtain or increase the amount of their Commitments (“Incremental Commitments”), by written notice executing and delivering to the Administrative Agent from time to time, request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth Increased Facility Activation Notice specifying (i) the amount of the such Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 Commitment and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term LoanIncreased Facility Closing Date; provided that, the terms applicable immediately prior to and after giving effect to any such Incremental Term Loans increase in the Commitments (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (wi) no Default or Event of Default shall exist giving pro forma effect have occurred and be continuing and (ii) each of the representations and warranties made by the Company in or pursuant to the Credit Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality or “Material Adverse Effect”, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality or “Material Adverse Effect”, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of Incremental Commitments obtained after the Restatement Effective Date pursuant to this paragraph shall not exceed $100,000,000, (ii) without the consent of the Administrative Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of at least $10,000,000 and (iii) all Incremental Commitments shall be documented solely as an increase to the Commitments, all Loans under Incremental Commitments (“Incremental Loans”) shall be identical to the Loans, and the terms and provisions of the Incremental Commitments and Incremental Loans shall be no more favorable than those applicable to the Commitments and Loans, respectively, including, without limitation, in respect of any interest rate margin applicable to any such Incremental Term Loan Commitment Loans and the incurrence of Indebtedness thereunder and use of proceeds therefrom; any undrawn commitment fee payable to any Bank or New Bank (xas defined below) the conditions set forth in clauses (a) and connection with such Incremental Commitments. No Bank shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Bank” under this Agreement in connection with any transaction described in Section 5.02 are satisfied whether 2.21(a) shall execute a New Bank Supplement (each, a “New Bank Supplement”), substantially in the form of Exhibit F-2, whereupon such bank, financial institution or not other entity (a Credit Extension is made “New Bank”) shall become a Bank for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on such date each Increased Facility Closing Date, the Company shall borrow Loans under the relevant increased Commitments from each Bank (including New Banks) participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, only in the case of Term SOFR Loans, of each Term SOFR Tranche) which would then have been outstanding from such Bank if (i) each such Type or Term SOFR Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Term SOFR Tranche requested to be so borrowed or effected had been proportionately increased. The Term SOFR applicable to any Term SOFR Loan borrowed pursuant to the extent a Borrowing is made preceding sentence shall equal the Term SOFR then applicable to the Term SOFR Loans of the other Banks in the same Term SOFR Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Company and the relevant Bank). If on such dateIncreased Facility Closing Date there are any Loans outstanding, clause the Administrative Agent shall take those steps which it deems, in its sole discretion and in consultation with the Company, necessary and appropriate to result in each Bank (cincluding each New Bank) is required to be complied with); (y) having a pro-rata share of the outstanding Loans based on a Pro Forma Basis, each such Bank’s Commitment Percentage immediately after giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be increase in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderCommitments.
Appears in 2 contracts
Sources: Credit Agreement (Lazard, Inc.), Credit Agreement (Lazard LTD)
Incremental Commitments. (1a) The At any time after the consummation of the Asset Drop Down and compliance by the Borrower maywith its obligations under Section 4.14(b), Borrower may from time to 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 Fifteen Million Dollars ($15,000,000) (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 Administrative Borrower 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 Borrower. 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 time any other Lender.
(b) If the Lenders do not commit to timeestablish the entire Incremental Revolver pursuant to subsection (a) of this Section 1.13, request Incremental Term Loan Commitments the Borrower may designate another bank or other financial institution (which may be, but need not to exceed $100,000,000 from be, one or more Eligible Assigneesof the existing Lenders), in each caseprovided, however that if such Person is not an existing Lender, such Person must be acceptable to the Agent and join this Agreement as a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan LendersAdditional Lender”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2c) The Loan PartiesIn the event that the Borrower desires to increase the Commitments by the Incremental Revolver, the Administrative Borrower will enter into an amendment with the Agent, those Lenders providing the Incremental Revolver and Additional Lenders, if any (which shall upon execution thereof become Lenders hereunder if not theretofore Lenders) to provide for such Incremental Revolver, which amendment shall set forth any terms and conditions of the Incremental Revolver not covered by this Agreement as agreed by the Borrower, Agent and any other Person whose consent is required as provided above such Lenders, and shall execute and deliver to provide for the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify issuance of promissory notes to evidence the Incremental Term Loan CommitmentRevolver 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. Each Additional Credit Extension Amendment pursuant 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, including, without limitation, Section 9.1.
(d) shall specify the terms The increase of the applicable Commitments by the Incremental Term Loans; provided that:
Revolver will be subject to the satisfaction of the following conditions precedent: (i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life after giving pro forma effect to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest ratesincrease, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving have occurred and be continuing and Borrowers will be in pro forma effect to such Incremental Term Loan Commitment and compliance with the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions covenants set forth in clauses Sections 6.2 and 6.3, (aii) and (b) execution 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, amendment hereto referenced in clause (c) is required to be complied with); (y) on a Pro Forma Basisabove by Agent, giving effect to such the Lenders and Additional Lenders providing the Incremental Term Loans Revolver and the incurrence Credit Parties, (iii) delivery to Agent of Indebtedness thereunder 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 (assuming or equivalent governing body) approving and authorizing the Incremental Revolver (if not previously delivered to Agent), and certifying that none of the organizational documents of such commitments are fully drawn on Credit Party delivered to the Agent prior thereto have been modified or altered in any way (or if modifications have occurred, certifying new copies of such dateorganizational documents), (iv) delivery to Agent of an opinion of counsel to the Credit Parties in form and use of proceeds therefromsubstance and from counsel reasonably satisfactory to the Agent, addressed to Agent and Lenders extending the Borrower would be in compliance with Section 8.11 Incremental Revolver and (z) the Administrative Agent shall have received documents and legal opinions as to covering such matters as are the Agent may reasonably requested request, (v) receipt by the Administrative Agent. Upon Agent of such new Notes and reaffirmations of guaranties, as Agent may reasonably request, together with amendments to any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure Mortgages reflecting that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance Incremental Revolver is secured pari passu with the respective amount Revolving Loan, and such endorsements to title policies or additional title searches as the Agent may reasonably request and (vi) the Asset Drop Down has been consummated and the requirements of Term Loans of such Class held by each LenderSection 4.14(a) have been satisfied.
Appears in 2 contracts
Sources: Credit Agreement (Cryolife Inc), Credit Agreement (Cryolife Inc)
Incremental Commitments. (1a) The Borrower maymay on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request prior to the Maturity Date, the establishment of Incremental Term Loan Commitments; provided that the aggregate, cumulative amount of all Incremental Commitments established pursuant to this Section 2.19 after the Closing Date shall not to exceed $100,000,000 from one or more Eligible Assignees, in each case, 150,000,000. Each such notice shall specify (i) the date on which the Borrower proposes that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender the Incremental Commitments shall be required to participate in any such Incremental Term Loan without its consent) and effective, which shall be subject a date not less than 10 Business Days (or such shorter period as may be agreed to by the Agent) after the date on which such consentsnotice is delivered to the Agent, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iii) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which identity of each Lender or other Person that the Borrower proposes become an Incremental Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment for each such Lender or other Person (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loan Commitments are requested Commitment and (y) any such Person that is not a Lender must be an Eligible Assignee that is reasonably acceptable to become effective (which shallthe Agent and, unless otherwise agreed by to the Administrative Agentextent applicable, be not less than ten Business Days after the date such notice is deliveredeach Issuing Bank).
(2b) The Loan Parties, the Administrative Agent terms and conditions of any Incremental Commitment and other Person whose consent is required as provided above shall execute and deliver extensions of credit 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
be made thereunder may be (i) identical to the Incremental Term Loans shall not be guaranteed by any Subsidiaries terms and conditions of the Borrower that do not guarantee the existing Commitments and Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
other extensions of credit made hereunder, (ii) (A) the Maturity Date in a separate tranche of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date revolving loans and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
commitments or (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with incurred in the then outstanding Term Loans form of term loans, in any mandatory prepayment;each case as agreed by the applicable Lenders.
(ivc) The Incremental Term Loans Commitments shall have be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term LoanAgent; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment Commitments shall become effective under this Section 2.01(b) unless (wi) no Default or Event of Default shall exist have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving pro forma effect to such Incremental Term Loan Commitment Commitments and the incurrence making of Indebtedness Loans and other extensions of credit 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 be made on such date, clause (cii) is on the date of effectiveness thereof, the representations and warranties of the Borrower set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects, and (B) otherwise, in all material respects, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in compliance with the covenants set forth in Section 6.12 on a pro forma basis as if such Loans or other extensions of credit had been incurred or assumed on the first day of the Test Period most recently ended on or prior to the date of such effectiveness, (iv) the Borrower shall make any payments required to be complied withmade pursuant to Section 2.14 in connection with such Incremental Commitments and the related transactions under this Section 2.19 and (v) the Borrower shall have delivered to the Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Agent, to give effect to the provisions of this Section 2.19 (including to evidence a separate tranche of revolving loans and commitments or term loans); .
(yd) In the case of Incremental Commitments described in Section 2.19(b)(i), upon effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the aggregate amount of the Lenders’ Commitments shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Credit Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentages of all the Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of the effectiveness of any Incremental Commitments described in Section 2.19(b)(i), each Lender shall be deemed to have assigned to each Incremental Lender holding such Incremental Commitments, and each such Incremental Lender shall be deemed to have purchased from each Lender, in an amount equal to the principal amount thereof (together with accrued and unpaid interest), such interests in the Loans and participations in Letters of Credit outstanding on a Pro Forma Basissuch date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders (including such Incremental Term Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitments. Any Loans outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are Eurodollar Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Lenders holding such Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time such Loans will be repaid or refinanced with new Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Lenders (including the Incremental Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Loans of other Lenders so that, after giving effect thereto, all Loans that are Eurodollar Loans are held by the Lenders (including the Incremental Lenders) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the incurrence minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. Any ABR Loans outstanding on the date of Indebtedness thereunder the effectiveness of such Incremental Commitments shall either be prepaid on such date or refinanced on such date (assuming that subject to the satisfaction of applicable borrowing conditions) with Loans made on such commitments are fully drawn date by the Lenders (including the Incremental Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Incremental Lender will make ABR Loans by transferring funds to the Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Lender’s Incremental Commitment by the aggregate amount of the Lenders’ Commitments (after giving effect to the effectiveness of the Incremental Commitments on such date) and use (ii) such funds will be applied to the prepayment of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are outstanding ABR Loans held by the Lenders of other than the Incremental Lenders, and transferred by the Agent to the Lenders other than the Incremental Lenders, in such Class on a pro rata basis amounts so that, after giving effect thereto, all ABR Loans will be held by the Lenders in accordance with their then-current Applicable Percentages. On the respective date of the effectiveness of such Incremental Commitments, the Borrower will pay to the Agent, for the accounts of the Lenders receiving such prepayments, accrued and unpaid interest on the aggregate principal amount of Term the Loans of such Class held the Borrower being prepaid. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) The Agent shall notify Lenders promptly upon receipt by the Agent of any notice from the Borrower referred to in Section 2.19 and of the effectiveness of any Incremental Commitments, in each Lendercase advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments deemed to have been made pursuant to Section 2.19(e).
Appears in 2 contracts
Sources: Revolving Credit Agreement (BrightSphere Investment Group Inc.), Revolving Credit Agreement (BrightSphere Investment Group Inc.)
Incremental Commitments. (1a) The Borrower mayCompany and any one or more Banks (including New Banks) may from time to time agree that such Banks shall make, obtain or increase the amount of their Commitments (“Incremental Commitments”), by written notice executing and delivering to the Administrative Agent from time to time, request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth Increased Facility Activation Notice specifying (i) the amount of the such Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 Commitment and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term LoanIncreased Facility Closing Date; provided that, the terms applicable immediately prior to and after giving effect to any such Incremental Term Loans increase in the Commitments (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (wi) no Default or Event of Default shall exist giving pro forma effect have occurred and be continuing and (ii) each of the representations and warranties made by the Company in or pursuant to the Credit Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of Incremental Commitments obtained after the Restatement Effective Date pursuant to this paragraph shall not exceed $100,000,000, (ii) without the consent of the Administrative Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of at least $10,000,000 and (iii) all Incremental Commitments shall be documented solely as an increase to the Commitments, all Loans under Incremental Commitments (“Incremental Loans”) shall be identical to the Loans, and the terms and provisions of the Incremental Commitments and Incremental Loans shall be no more favorable than those applicable to the Commitments and Loans, respectively, including, without limitation, in respect of any interest rate margin applicable to any such Incremental Term Loan Commitment Loans and the incurrence of Indebtedness thereunder and use of proceeds therefrom; any undrawn commitment fee payable to any Bank or New Bank (xas defined below) the conditions set forth in clauses (a) and connection with such Incremental Commitments. No Bank shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Bank” under this Agreement in connection with any transaction described in Section 5.02 are satisfied whether 2.21(a) shall execute a New Bank Supplement (each, a “New Bank Supplement”), substantially in the form of Exhibit F-2, whereupon such bank, financial institution or not other entity (a Credit Extension is made “New Bank”) shall become a Bank for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on such date each Increased Facility Closing Date, the Company shall borrow Loans under the relevant increased Commitments from each Bank (including New Banks) participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, only in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Bank if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Rate applicable to any Eurodollar Loan borrowed pursuant to the extent a Borrowing is made preceding sentence shall equal the Eurodollar Rate then applicable to the Eurodollar Loans of the other Banks in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Company and the relevant Bank). If on such dateIncreased Facility Closing Date there are any Loans outstanding, clause the Administrative Agent shall take those steps which it deems, in its sole discretion and in consultation with the Company, necessary and appropriate to result in each Bank (cincluding each New Bank) is required to be complied with); (y) having a pro-rata share of the outstanding Loans based on a Pro Forma Basis, each such Bank’s Commitment Percentage immediately after giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be increase in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderCommitments.
Appears in 2 contracts
Sources: Credit Agreement (Lazard LTD), Credit Agreement (Lazard Group LLC)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments additional Commitments, in an aggregate amount not to exceed $100,000,000 the Incremental Facility Amount at such time, from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Persons (which, in each case, which may include any existing Lender (but no willing to provide the same, in its own discretion) that will become Lenders; provided that each such Lender shall be required to participate in any such Incremental Term Loan without its consent) and Person, if not already a Lender, shall be subject to the approval of the Administrative Agent and the Issuing Lenders (which approvals shall not be unreasonably withheld, delayed or conditioned). Each such consentsnotice shall be signed by a Financial Officer of the Borrower (provided that if such notice is submitted through an Approved Borrower Portal, if any, as would the foregoing signature requirement may be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their waived at the sole discretion (such Lenders, of the “Incremental Term Loan Lenders”). Such notice Administrative Agent) and shall set forth (i) the amount of the Incremental Term Loan additional Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Facility Amount) and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan additional Commitments are requested to become effective (which shallshall not be less than 10 Business Days or more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2b) The Loan Parties, the Administrative Agent Borrower and any other each Person whose consent is required as provided above providing an additional Commitment shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Commitment of such Person.
(c) Each Additional Credit Extension Amendment of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Commitments pursuant to Section 5.05(a), the outstanding Loans (if any) are held by the Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by (i) requiring the outstanding Loans to be prepaid with the proceeds of a new Borrowing, (ii) causing non-increasing Lenders to assign (at par, with accrued interest and fees) portions of their outstanding Loans to Persons that are becoming Lenders (or increasing their Commitments), or (iii) any combination of the foregoing. Any prepayment or assignment described in this clause Section 5.05(c) shall be subject to Section 5.11, but shall otherwise be without premium or penalty.
(d) shall specify Notwithstanding the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and foregoing, no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans increase in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 5.05 unless (wi) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and on the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) date thereof, the conditions set forth in clauses Section 7.02(b) (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, without giving effect to the parenthetical therein and with references therein to a Borrowing being deemed to be references to such Incremental Term Loans increase, and with Section 6.05(a) being deemed for this purpose to refer to the most recent financial statements delivered pursuant to Sections 8.03(a) and 8.03(b)) shall be satisfied and no Default shall have occurred and be continuing, and the incurrence Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefromthe Borrower, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested (unless otherwise agreed by the Administrative Agent. Upon any increase ), board resolutions (or reaffirmation of any existing Class the continuing effectiveness of Term Loans, previously adopted board resolutions applicable thereto) and certificates consistent with those delivered on the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderEffective Date under Sections 7.01(b) and 7.01(e).
Appears in 2 contracts
Sources: Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.), Five Year Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice Pursuant to Section 2.15 of the Credit Agreement and subject to the Administrative Agent from time terms and conditions set forth herein, each Lender severally agrees to time, request make an Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees, the Borrower on the Effective Date in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without the amount set forth opposite its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, name on Exhibit A hereto under the heading “Incremental Term Loan Lenders”). Such notice shall set forth Commitment” (i) such loans being the amount of the “Third Amendment Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredLoans”).
(2b) The Loan PartiesSubject to Section 3(e) below, 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 procedure for making such Third Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than as set forth in Section 2.02 of the then Latest Maturity Date Credit Agreement, the terms of which section are incorporated herein mutatis mutandis.
(c) The Third Amendment Incremental Term Loans made pursuant to this Section 3 shall be treated as an increase in the existing Class of Term A Loans and (B) the Weighted Average Life to Maturity terms and provisions of any such Third Amendment Incremental Term Loans shall be no shorter than identical to those of the remaining Weighted Average Life Term A Loans; provided that, pursuant to Maturity Section 2.15(g)(iii) of any then outstanding Class the Credit Agreement, the amortization of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Third Amendment Incremental Term Loans shall be on terms as set forth in Section 2.07(e) of the Credit Agreement (and pursuant to documentation to be determined by not as set forth in Section 2.07(a) of the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Existing Credit Agreement).
(d) The Third Amendment Incremental Term Loans (except as expressly permitted above made pursuant to Section 3(a)(i) hereof shall constitute a “Term Loan” for all purposes of the Credit Agreement from and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower Third Amendment Effective Date and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and rank pari passu in all respects with all other Term Loans, as reasonably determined regardless of when made.
(e) No amount of any Third Amendment Incremental Term Loans made pursuant to Section 3(a) hereof that is repaid or prepaid by the Borrower Borrowers may be reborrowed.
(except f) For the avoidance of doubt, the Third Amendment Incremental Term Loans made pursuant to the extent that this Agreement is amended (which Section 3(a)(i) hereof shall not require reduce the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions availability set forth in clauses (a) and (bSection 2.15(a) of Section 5.02 are satisfied whether or not a the Credit Extension is made on such date Agreement (and, only as amended pursuant to the extent a Borrowing is made on such date, clause (c) is required to be complied withthis Amendment); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 2 contracts
Sources: Credit Agreement (Ichor Holdings, Ltd.), Credit Agreement (Ichor Holdings, Ltd.)
Incremental Commitments. (1a) The Borrower maySo long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, by written notice Holdings shall have the right, with the consent of, and in coordination with, the Agent, but without requiring the consent of any of the Banks (save as provided in Section 2.16(b) below), to the Administrative Agent request at any time and from time to timetime after the Closing Date and prior to the Expiration Date, request Incremental Term Loan Commitments not to exceed $100,000,000 from that one or more Banks (and/or one or more other banks or financial institutions which are acceptable to each of the Agent and Holdings (each an “Eligible AssigneesTransferee”) and which will become Banks as provided below) provide Incremental Commitments and, subject to the applicable terms and conditions contained in each casethis Agreement, make Loans pursuant thereto; it being understood and agreed, however, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but i) no such Lender Bank shall be required obligated to participate in provide an Incremental Commitment as a result of any such Incremental Term Loan without its consent) request by the Borrowers, and shall be subject to until such consentstime, if any, as would such Bank has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Agent an Incremental Commitment Agreement in respect thereof as provided in Section 2.16(b), such Bank shall not be required obligated to fund any Loans in connection with an assignment excess of a Term Loan its Commitment as in effect prior to giving effect to such PersonIncremental Commitment provided pursuant to Section 2.16(b) willing below, (ii) any Bank (including any Eligible Transferee who will become a Bank) may so provide an Incremental Commitment without the consent of any other Bank, (iii) each provision of Incremental Commitments on a given date pursuant to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iSection 2.16(b) the amount of the Incremental Term Loan Commitments being requested (which below shall be in a minimum aggregate amount (for all Banks (including any Eligible Transferee who will become a Bank)) of at least $25,000,000 and in integral multiples of $5,000,000 in excess thereof, (iv) the aggregate amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the all Incremental Term Loans to be borrowed Commitments provided pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans Section 2.16(b) below, shall not exceed $100,000,000 and (iiiv) all Loans made and Letters of Credit issued pursuant to Incremental Commitments (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date on which such Incremental Term other applicable Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)Documents.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.16, the Administrative Borrowers, the Agent and any each such Bank or other Person whose consent is required as provided above Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Bank”) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Commitment Agreement, with the effectiveness of such other documentation as Incremental Bank’s Incremental Commitment to occur on the Administrative Agent shall reasonably specify to evidence date (the “Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (dCommitment Date”) shall specify the terms of the applicable set forth in such Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by Commitment Agreement, which date in any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans event shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate date on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default 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 up-front or Event of Default shall exist giving pro forma effect arrangement fees owing to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; Agent (or any affiliate thereof)), (x) the all Incremental Loan Commitment Requirements are satisfied, (y) all other conditions set forth in clauses (athis Section 2.16(b) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (andshall have been satisfied, 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Agent shall have received documents and legal opinions promptly notify each Bank as to the effectiveness of each Incremental Commitment Agreement, and at such matters as are reasonably time, (i) the Commitments under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) Schedule 1.01(B) shall be deemed modified to reflect the revised Revolving Credit Commitments of the affected Banks and (iii) to the extent requested by any Incremental Bank, Notes will be issued, at the Administrative Borrowers’ expense, to such Incremental Bank.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 2.16, the Borrowers shall, in coordination with the Agent. Upon , repay outstanding Loans of certain of the Banks, and incur additional Loans from certain other Banks (including the Incremental Banks), in each case to the extent necessary so that all of the Banks participate in each outstanding Borrowing Tranche of Loans pro rata on the basis of their respective Commitments (after giving effect to any increase of any existing Class of Term Loans, in the Lenders shall take any action as may be reasonably required by the Administrative Agent Commitments pursuant to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance this Section 2.16 above) and with the Borrowers being obligated to pay to the respective amount Banks any costs of Term Loans of the type referred to in Section 3.04 herein in connection with any such Class held by each Lenderrepayment and/or Loans.
Appears in 2 contracts
Sources: Credit Agreement (Assured Guaranty LTD), Credit Agreement (Assured Guaranty LTD)
Incremental Commitments. (1a) The Borrower may, may by written notice to the Administrative Agent from elect to request (A) at any time prior to timethe Commitment Termination Date, request Incremental an increase to the existing Commitments (each, a “Commitment Increase”) and/or (B) the establishment of one or more new term loan commitments (the “New Term Loan Commitments Commitments” and, together with each Commitment Increase, the “Incremental Commitments”) up to an aggregate amount not to exceed $100,000,000 from one or more Eligible Assignees25,000,000, in each caseincrements not less than $10,000,000 individually, and integral multiples of $5,000,000 in excess of that is a Farm Credit Lender amount. Each such notice shall specify (whichA) the date (each, in each casean “Increase Date”) on which Borrower proposes that the Commitment Increase or New Term Loan Commitments, may include any existing Lender (but no such Lender as applicable, shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consentseffective, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) date not less than 10 Business Days after the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the delivered to 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life identity of each Lender or other Person (other than the Borrower or an Affiliate thereof or any natural person) reasonably acceptable to Maturity of any the Administrative Agent, Issuing Bank and Swing Line Lender (each, an “Incremental Revolving Lender “ or “Incremental Term Loans shall be no shorter than Lender”, as applicable, and collectively, the remaining Weighted Average Life “ Incremental Lenders”) to Maturity whom Borrower proposes any portion of any then outstanding Class of Term Loans;
(iii) no Incremental such Commitment Increase or New Term Loan shall participate on a greater than pro rata basis with Commitments, as applicable, be allocated and the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans amounts of such allocations; provided that Administrative Agent shall have no obligation to arrange such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Commitment Increase or New Term Loan Commitments unless otherwise agreed in writing and any Lender approached to provide all or a portion of the Borrower (except that any Incremental Commitment Increase or New Term Loans forming an addition Loan Commitments may elect or decline, in its sole discretion, to an existing Class provide a Commitment Increase or a New Term Loan Commitment. Such Commitment Increase or New Term Loan Commitments shall become effective, as of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term LoanIncrease Date; provided that, the terms applicable to any such Incremental Term Loans that (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w1) no Default or Event of Default shall exist on such Increase Date before or after giving pro forma effect to such Incremental Term Loan Commitment and Commitments; (2) after giving effect to the incurrence of Indebtedness thereunder such Incremental Commitments and use the application of proceeds therefrom; , and assuming a full drawing of such New Term Loan Commitments or Commitment Increase as applicable, but without “netting” the cash proceeds thereof, the Consolidated Total Leverage Ratio, calculated on a Pro Forma Basis as of the last day of the fiscal quarter most recently ended for which financial statements are required to be delivered pursuant to Section 5.1, shall not exceed the maximum Consolidated Total Leverage Ratio permitted under Section 6.12 for such period, (x3) both before and after giving effect to the incurrence of such Incremental Commitments and the application of proceeds therefrom, each of the conditions set forth in clauses Section 4.2 shall be satisfied (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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions except as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required otherwise agreed by the Administrative Agent and each applicable Incremental Lender); (4) the Commitment Increase or New Term Loan Commitments, as applicable, shall be effected pursuant to ensure that one or more joinder agreements in form and substance reasonably satisfactory to the Borrowings of Borrower and the Administrative Agent executed and delivered by Borrower, the applicable Incremental Lender, and Administrative Agent; (5) Borrower shall make any payments required pursuant to Section 2.15 in connection with such Class are held Incremental Commitments; and (6) Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Lenders of Administrative Agent in connection with any such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lendertransaction.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Fitbit Inc), Revolving Credit and Guaranty Agreement (Fitbit Inc)
Incremental Commitments. (1a) The Borrower mayBorrowers shall have the right, by written notice without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.15) or the Lenders (except for the Issuing Lenders as provided below), to request at any time and from time to time after the Effective Date and prior to the Revolving Commitment Termination Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided, that, (i) no Lender shall be obligated to provide an Incremental Commitment, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and has executed and delivered to the Administrative Agent from time Agent, the Company and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to time, request Incremental Term fund any Revolving Loans in excess of its Revolving Loan Commitments not to exceed $100,000,000 from one Commitment (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its RL Percentage, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.15; provided, that, the Lenders shall have at least 10 Business Days following the Borrowers’ request for Incremental Commitments to decide whether or not to provide any such Incremental Commitments (and, to the extent that is a Farm Credit any such Lender (whichfails to respond within such 10 Business Day period, in each case, may include any existing Lender (but no such Lender shall be required deemed to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing have rejected to provide such an Incremental Term Loans in their sole discretion Commitment), (such Lendersii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of the Administrative Agent or any other Lender; provided, that, any Person that is not a Lender prior to the “effectiveness of its Incremental Term Loan Lenders”). Such notice Commitment shall set forth require the consent of the Administrative Agent and each Issuing Lender (ieach of which consents shall not be unreasonably withheld) to provide an Incremental Commitment pursuant to this Section 2.15, (iii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.15 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, 25,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Commitments permitted to be provided pursuant to this Section 2.15 shall not exceed in the aggregate $200,000,000, (v) the Borrowers shall not increase the Total Revolving Loan Commitment pursuant to this Section 2.15 more than five times, (vi) if the Applicable Margins with respect to Revolving Loans to be borrowed incurred pursuant to an Incremental Commitment shall be more than 50 basis points higher than those applicable to any other Revolving Loans, the Applicable Margins for such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term other Revolving Loans and extension of credit hereunder shall be automatically increased by an amount equal to such excess (iiisuch increase, the “Additional Margin”), (vii) all Revolving Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under the Guaranty, on a pari passu basis with all other Obligations secured by each relevant Security Document and guaranteed under the Guaranty, and (viii) each Lender (including any Person which such is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitments are requested Commitment pursuant to become effective (which an Incremental Commitment Agreement shall, unless otherwise agreed by subject to the Administrative Agentsatisfaction of the relevant conditions set forth in this Agreement, be not less than ten Business Days after participate in Swingline Loans and Letters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the date such notice is delivered)other applicable Credit Documents.
(2b) The Loan At the time of the provision of Incremental Commitments pursuant to this Section 2.15, (i) the Credit Parties, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Borrowers and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the 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 (A)all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (B) all Incremental Commitment Requirements have been satisfied, (C)all conditions set forth in this Section 2.15 shall have been satisfied and ((D) all other Person whose consent is required conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied) and (ii) the Credit Parties and the Collateral Agent and each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an such additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments and any Additional Credit Extension Amendment and such other documentation as Margin are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Term Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment. Each Additional Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.15, each Borrower shall, in coordination with the terms Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing Lenders); and
Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateTotal Revolving Loan Commitment pursuant to this Section 2.15) and use with the Borrowers being obligated to pay to the respective Lenders any costs of proceeds therefrom, the Borrower would be type referred to in compliance Section 2.11 in connection with Section 8.11 and any such repayment and/or Borrowing.
(ze) At 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 time of any existing Class provision of Term LoansIncremental Commitments pursuant to this Section 2.15, all dollar thresholds included in any determination made with respect to Excess Availability shall be increased automatically in an amount equal to the Lenders shall take any action as may be reasonably required percentage by which the Administrative Agent to ensure that Incremental Commitments increase the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderTotal Revolving Loan Commitments.
Appears in 2 contracts
Sources: Abl Credit Agreement (CVR Energy Inc), Abl Credit Agreement
Incremental Commitments. (1a) The At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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 whereupon the Administrative Agent shall reasonably specify promptly make such notice available to evidence each of the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment Lenders), pursuant to this clause an Incremental Amendment (d“Incremental Amendment”) shall specify request that the terms of Total Commitments be increased by up to $400,000,000 in the applicable Incremental Term Loansaggregate (each such increase in the Total Commitments, a “Commitment Increase”) to be provided by Additional Lenders; provided that:
(iA) the Incremental Term Loans under each Commitment Increase shall not for all purposes be guaranteed by any Subsidiaries Loans borrowed pursuant to the terms of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligationsthis Credit Agreement;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) after giving effect to each Commitment Increase, the Weighted Average Life to Maturity of any Incremental Term Loans Total Commitments shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loansnot exceed $1,200,000,000;
(iiiC) no Incremental Term Loan the financial institutions providing such Commitment Increase shall participate on a greater than pro rata basis with be reasonably acceptable to the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments Administrative Agent and the Borrower (except that but shall not in 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 existing Class of Term Loansevent include a Disqualified Lender);
(vD) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (wi) no Default or Event of Default shall have occurred and be continuing or would exist after giving pro forma effect thereto, and (ii) the representations and warranties made by the Credit Parties pursuant to the Fundamental Documents shall be true and correct in all material respects (or in all respects, if qualified by materiality); provided that representations and warranties that are expressly stated to be as of an earlier date shall be accurate in all material respects as of such Incremental Term Loan Commitment earlier date (or in all respects, if qualified by materiality) immediately prior to, and after giving effect to, the incurrence of Indebtedness thereunder and use such Commitment Increase,
(E) it shall be a condition to each Commitment Increase that the Borrower shall have delivered to the Administrative Agent a certificate of proceeds therefrom; (x) a financial officer certifying to the conditions effect set forth in clauses subclause (a) and D).
(b) Each Commitment Increase shall be in a minimum principal amount of Section 5.02 are satisfied whether or not a Credit Extension is made on $10,000,000 and integral multiples of $1,000,000 million in excess thereof; provided that such date (and, only amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Commitment Increases set forth above. No Lender shall be obligated to the extent a Borrowing is made on such date, clause provide any Commitment Increase unless it so agrees.
(c) is required Each notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount of the relevant Commitment Increase.
(d) Upon the implementation of any Commitment Increase pursuant to this Section 2.13, (A) each Lender immediately prior to such increase will automatically and without further act be complied with); (y) on deemed to have assigned to each relevant Additional Lender, and each relevant Additional Lender will automatically and without further act be deemed to have assumed a Pro Forma Basisportion of such ▇▇▇▇▇▇’s Participating Interests such that, after giving effect to such Incremental Term Loans each deemed assignment and assumption of participations, all of the incurrence of Indebtedness thereunder Lenders’ (assuming that such commitments are fully drawn on such dateincluding each Additional Lender’s) and use of proceeds therefrom, the Borrower would Participating Interests shall be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis on the basis of their Percentage (after giving effect to any Commitment Increase) and (B) the existing Lenders shall assign Loans to certain other Lenders (including the Additional Lenders providing the relevant Commitment Increase), and such other Lenders (including the Additional Lenders providing the relevant Commitment Increase) shall purchase such Loans, in accordance with each case to the respective extent necessary so that all of the Lenders participate in each outstanding Borrowing of Loans pro rata on the basis of their Percentage (after giving effect to any Commitment Increase); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Credit Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Effective on the date of each Commitment Increase, the maximum amount of Term Loans L/C Exposure permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Issuing Banks and the Borrower; provided that the L/C Exposure shall not exceed 12.5% of the Commitments after giving effect to the Commitment Increase.
(f) An Incremental Amendment may, subject to Section 2.13(a), without the consent of any other Lenders, effect such Class held by each Lenderamendments to this Credit Agreement and the other Fundamental Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.13 (including, in connection with a Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the Lenders).
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Lionsgate Studios Corp.), Credit and Guarantee Agreement (Lionsgate Studios Holding Corp.)
Incremental Commitments. (1a) The So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower mayshall have the right, by written notice to in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.13, but without requiring the consent of any of the Lenders, to request at any time and from time to timetime after the Initial Borrowing Date and prior to the date that is three months prior to the Revolving Loan Maturity Date, request Incremental Term Loan Commitments not to exceed $100,000,000 from that one or more Lenders (and/or one or more other Persons that are Eligible AssigneesTransferees and that will become Lenders as provided below) provide Incremental Commitments, in each caseit being understood and agreed, however, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but i) no such Lender shall be required obligated to participate in provide an Incremental Commitment as a result of any such Incremental Term Loan without its consent) request by the Borrower, and shall be subject to until such consentstime, if any, as would 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 2.13, such Lender shall not be required obligated to fund any Revolving Loans or participate in connection with an assignment Swingline Loans or Letters of a Term Credit in excess of its Revolving Loan Commitment as in effect prior to giving effect to such PersonIncremental Commitment provided pursuant to this Section 2.13, (ii) willing any Lender (including any Eligible Transferee that will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which this Section 2.13 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee that will become a Lender)) of at least $25,000,000 and in integral multiples of $5,000,000 in excess thereof, and (iv) the aggregate amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the all Incremental Term Loans to be borrowed Commitments provided pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be this Section 2.13 shall not less than ten Business Days after the date such notice is delivered)exceed $100,000,000.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.13, the Borrower, the Administrative Agent and any each such Lender or other Person whose consent is required as provided above Eligible Transferee that agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Commitment Agreement, with the effectiveness of such other documentation as Incremental Lender’s Incremental Commitment to occur on the Administrative Agent shall reasonably specify to evidence date set forth in such Incremental Commitment Agreement (the “Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by Commitment Date”), which date in any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans event shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate date on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including any agreed upon up-front or Event of Default shall exist giving pro forma effect arrangement fees owing to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; Administrative Agent (or any affiliate thereof)), (x) the all Incremental Commitment Requirements shall have been satisfied, (y) all other conditions set forth in clauses (a) and (b) of this Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and2.13 shall have been satisfied, 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall have received documents and legal opinions promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such matters as are reasonably time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) Schedule I shall be deemed modified to reflect the revised Revolving Loan Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes shall be issued, at the expense of the Borrower, to such Incremental Lender in conformity with the requirements of Section 2.04(a).
(c) At the time of any provision of Incremental Commitments pursuant to this Section 2.13, the Borrower shall, in coordination with the Administrative Agent. Upon , repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders), in each case to the extent necessary so that all of the Lenders participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase of any existing Class of Term Loans, in the Lenders shall take any action as may be reasonably required by the Administrative Agent Total Revolving Loan Commitment pursuant to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance this Section 2.13) and with the respective amount Borrower being obligated to pay to the applicable Lenders any costs of Term Loans of the type referred to in Section 2.09 in connection with any such Class held by each Lenderrepayment and/or incurrence.
Appears in 2 contracts
Sources: Credit Agreement (Shuffle Master Inc), Credit Agreement (Shuffle Master Inc)
Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable, in an amount not to exceed $100,000,000 the 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 Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”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 Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative AgentAgent (which approval shall not be unreasonably withheld, conditioned or delayed)), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective 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 shallshall 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, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentInitial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be not less than ten Business Days after in the date sole discretion of such notice is delivered)Lender.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Commitments; provided provided, that:
(i) any (x) commitments to make additional Initial Term Loans shall have the same terms as the Initial Term Loans, and shall form part of the same Class of Initial Term Loans and (y) Incremental Revolving Commitments shall have the same terms as the then outstanding Class of Revolving Commitments (or, if more than one Class of Revolving Commitments is then outstanding, the Revolving Commitments with the then latest Revolving Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving 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 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 not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and subject to a Permitted Junior Intercreditor Agreement) or shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;unsecured,
(iiiii) (A) the Maturity Date final maturity date of any such Other Incremental Term Loans 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 then Latest 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 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 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 Initial Term Loan Maturity Date),
(iv) the Weighted Average Life to Maturity 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 shorter than the remaining Weighted Average Life to Maturity of the Initial Term Facility,
(v) [Reserved,]
(vi) such Other Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis or solely to the same extent that any then outstanding existing Class of Term Loans;
(iii) no Incremental Term Loan shall participate Loans participates on a greater than pro rata basis with as compared to any other existing Class of Term Loans, on a greater than pro rata basis, than the then outstanding Term Loans in any mandatory prepayment;or voluntary prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Commitments, and
(except that any viii) Other Incremental Term Loans forming and Incremental Revolving Commitments shall not be secured by any 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 to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments evidenced thereby as provided for in Section 9.08(e), including to the extent practicable, to make an addition Incremental Loan fungible (including for tax purposes). Without limiting the foregoing, an Incremental Assumption Agreement may (i) extend or add “call protection” to an any existing Class tranche of Term Loans and (ii) amend the schedule of amortization payments relating to any existing tranche of Term Loans, including amendments to Section 2.10(a) (provided, that any such amendment shall not decrease any amortization payment to any Lender that would have otherwise been payable to such Lender prior to the same interest rateseffectiveness of the applicable Incremental Assumption Agreement), optional prepayment provisions in the case of each clause (i) and fees (other than upfront fees) as ii), so that such Incremental Term Loans and the applicable existing Term Loans form the same Class of Term Loans; provided, that such amendments are not adverse to the existing Term Loan Lenders (as determined in good faith by the Borrower);. 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 “Loan Documents” hereunder and 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.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist giving pro forma effect to such (subject, in the case of any tranche of Incremental Term Loans or any Incremental Revolving Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromthat is used to finance a Limited Condition Transaction, to Section 1.07); (xii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother 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 Lenders, participating in such tranche of Incremental Term Loans or Incremental Revolving Commitment, as applicable, agree, the foregoing clause (ii) shall be limited to customary “specified representations,” and in the case of any Limited Condition Acquisition (bother than an acquisition to which the United Kingdom City Code on Takeovers and Mergers (or similar law or regulation) applies), those representations of Section 5.02 the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are satisfied whether or not a Credit Extension is made on such date (and, 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 Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall 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 Incremental Term Loans), 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 Loans in respect of Incremental Revolving Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of SOFR Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 2 contracts
Sources: Credit Agreement (Enhabit, Inc.), Credit Agreement (Encompass Health Corp)
Incremental Commitments. (1a) The Provided that no Event of Default shall have occurred and be continuing, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed $100,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such the Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, Amount from the “Incremental Term Loan Lenders”)Agent. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 5,000,000 or remaining permitted amount or, in each case, such lesser amount approved by equal to the Administrative Agentremaining Incremental Term Loan Amount), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, shall not be not less than ten Business Days nor more than 60 days after the date of such notice is deliverednotice), and (iii) whether such Incremental Term Loan Commitments are commitments to make additional Loans or commitments to make a new series of term loans with terms different from the Loans.
(2b) The Loan PartiesAgent shall be entitled to agree or decline to participate in any Incremental Term Loans in its sole discretion. The Borrower and the Agent, if the Administrative Agent and agrees to provide any other Person whose consent is required as provided above Incremental Term Loans, shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the The terms and provisions of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries identical to those of the Borrower that do Loans except as otherwise set forth herein or in the Incremental Term Loan Assumption Agreement unless otherwise agreed between the Agent and the Borrower. If the terms of the Incremental Term Loans are not guarantee identical to the existing Loans and shall be secured on a pari passu basis by the same Collateral Closing Date Term Loans, in any event, (and no additional collateral) securing the then existing Obligations;
(ii) (Ai) the Maturity Date final maturity date of any the Incremental Term Loans shall be no earlier than the then Latest Maturity Date and Date, (Bii) the Weighted Average Life average life to Maturity maturity of any the Incremental Term Loans shall be no shorter than the remaining Weighted Average Life average life to Maturity maturity of any then outstanding Class of the Closing Date Term Loans;
Loans and (iii) no Incremental Term Loan shall participate if the initial yield on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower Agent in its reasonable discretion) exceeds the yield then in effect for Closing Date Term Loans and Delayed Draw Term Loans, if any (except the amount of such excess being referred to herein as the “Yield Differential”), then the yield then in effect for Closing Date Term Loans and Delayed Draw Term Loans, if any, shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Agent and the Borrower may revise this Agreement is amended (which shall not require the consent of any Lender) to incorporate evidence such more restrictive provisions for the benefit of the then existing Lenders); andamendments.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.11 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses (aSection 4.02(a) and (b) of Section 5.02 are shall be 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (ii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement, the Agent shall have received legal opinions as to such matters as are opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 2 contracts
Sources: Credit Agreement (Powerwave Technologies Inc), Credit Agreement (Powerwave Technologies Inc)
Incremental Commitments. (1a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments, first, from one or more Lenders (in the sole discretion of such Lenders) or second, from Eligible Assignees who will become Lenders, in an aggregate principal amount for all Incremental Commitments not to exceed $100,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)15,000,000. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $100,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent1,000,000), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective and (which shall, unless otherwise agreed by iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with terms different from the Administrative Agent, Term Loans (“Other Term Loans”). All Incremental Term Loans shall be not less than ten Business Days after the date such notice is delivered)made in Dollars.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Lender. Each Additional Credit Extension Amendment pursuant Subject to this clause (dc) below, each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided Loans to be made thereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the 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 reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby and any increase to the Applicable Margins required by the foregoing provisions of this paragraph. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(c) The terms of each Incremental Term Loan shall be as follows:
(i) the any Incremental Term Loans Loan Commitment ranking pari passu in right of payment and of security shall (A) rank pari passu in right of payment and of security with the existing Term Loans, (B) not be secured by any Lien on any property or asset of the Credit Parties that does not also secure the Secured Obligations and (C) not be guaranteed by any Subsidiaries of Person other than the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing ObligationsCredit Parties;
(ii) (A) the Maturity Date of any such Incremental Term Loans Loan shall be no not mature earlier than the then Latest Maturity Date and Date;
(Biii) the such Incremental Term Loan shall have a Weighted Average Life to Maturity of any Incremental Term Loans shall be no not shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of existing Term Loans;
(iv) such Incremental Term Loans, subject to clauses (ii) and (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans above, shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be amortization determined by the Borrower and the Lenders providing applicable Incremental Term Lenders;
(v) after giving effect to such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (wA) no Default or Event of Default shall exist giving pro forma effect have occurred and be continuing or would result therefrom, and (B) on a Pro Forma Basis, the Total Leverage Ratio shall be no greater than the lower of (1) 2.75 to 1.00 and (2) the then applicable level set forth in Section 5.9.
(vi) such Incremental Term Loan Commitment Loans, subject to clause (viii) below, shall have an Applicable Margin determined by the Borrower and the incurrence applicable Incremental Term Lenders;
(vii) such Incremental Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Indebtedness thereunder and use the initial Term Loans incurred hereunder, as specified in the applicable Incremental Assumption Agreement; and
(viii) without the prior written consent of proceeds therefrom; the Lenders, for any Incremental Term Loans made on or prior to the date that is eighteen (x18) months following the Closing Date, if the Effective Yield on any Other Term Loans (as reasonably determined by the Administrative Agent) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Effective Yield (as reasonably determined by the Administrative Agent) on any then outstanding Class of Term Loans, then the Applicable Margin for such Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Other Term Loans.
(d) Other than with respect to any Incremental Term Loan in connection with a Limited Condition Acquisition, no Incremental Term Loan Commitments shall become effective under this Section 2.22 unless, on the date of such effectiveness, (i) the conditions set forth in clauses paragraphs (a) and (b) of Section 5.02 are 4.2 shall be satisfied whether or not as if it were a Credit Extension is made on borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date (and, only to and executed by a Responsible Officer of the extent a Borrowing is made on such date, clause (c) is required to be complied with)Borrower; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents (with sufficient copies for each of the Incremental Term Lenders) closing certificates, opinions of counsel and legal opinions as to such matters as are other customary documentation reasonably requested by the Administrative Agent. Upon any increase .
(e) Each of any existing Class of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that the Borrowings all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each borrowing of such Class are held by the Lenders of such Class outstanding Term Loans on a pro rata basis basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding SOFR Loan to be converted into an Alternate Base Rate Loan on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding SOFR Loan on a pro rata basis, even though as a result thereof such Incremental Term Loan may effectively have a shorter Interest Period than the Term Loans included in accordance the borrowing of which they are a part (and notwithstanding any other provision of this Credit Agreement that would prohibit such an initial Interest Period). Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 2.15 (it being understood that, the Administrative Agent shall consult with the respective Borrower regarding the foregoing and, to the extent practicable, will use commercially reasonable efforts to pursue options that minimize breakage costs). In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.2(b)(i) required to be made after the making of such Incremental Term Loans shall be ratably increased in proportion to the aggregate principal amount of such Incremental Term Loans of such Class held by each LenderLoans.
(f) This Section 2.22 shall supersede any provisions in Section 2.11(b), 9.1 or 9.7(b) to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Fluent, Inc.), Credit Agreement (Fluent, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to timetime (but on not more than two occasions), request Incremental Term Loan Commitments in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible AssigneesIncremental Lenders, in each case, that is a Farm Credit Lender (which, in each case, which may include any existing Lender; provided that each Incremental Lender, if not already a Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and hereunder, shall be subject to such consents, if any, as would the approval of the Administrative Agent (which approval shall not be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 5.0 million or remaining permitted amount or, in each case, such lesser amount approved by equal to the Administrative Agent), remaining Incremental Amount) and (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, shall not be not less than ten 10 Business Days nor more than 60 days after the date of such notice is deliverednotice).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of each Incremental Lender. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each Additional Credit Extension Amendment pursuant of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to this clause the extent (dbut only to the extent) shall specify necessary to reflect the existence and terms of the applicable Incremental Term Loans; provided that:Commitment and the Incremental Loans evidenced thereby.
(ic) Notwithstanding the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.15 unless (wi) the representations and warranties of the Borrower and each other Loan Party contained in this Agreement and the other Loan Documents shall be true in all material respects on such date, (ii) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 have occurred 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds continuing or would result therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents (with sufficient copies for each of the Incremental Lenders) an officer’s certificate executed by a Responsible Officer of the Borrower certifying, together with (unless otherwise specified in the applicable Incremental Assumption Agreement) legal opinions, board resolutions and legal opinions as to such matters as are other closing certificates reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term LoansAgent and consistent with those delivered on the Closing Date under Section 4.01, the Lenders shall take any action as may be reasonably required by (iv) all fees and expenses owing to the Administrative Agent or the Incremental Lenders in connection with such Incremental Commitments shall have been paid and (v) the Incremental Assumption Agreement and any other documents entered into in connection therewith shall be reasonably satisfactory to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderAdministrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Container Store Group, Inc.), Credit Agreement (Container Store Group, Inc.)
Incremental Commitments. (1a) The Borrower maySo long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, by written notice to the Borrowers shall have the right, with the consent of, and in 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 timetime after the Initial Borrowing Date and prior to the Final Maturity Date, request Incremental Term Loan Commitments not to exceed $100,000,000 from that one or more Lenders (and/or one or more other Persons which are Eligible AssigneesAssignees and which will become Lenders as provided below) provide Incremental Commitments under a Tranche and, subject to the applicable terms and conditions contained in each casethis Agreement, make Revolving Loans pursuant thereto, it being understood and agreed, however, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but i) no such Lender shall be required obligated to participate in provide an Incremental Commitment as a result of any such Incremental Term Loan without its consent) request by the Borrowers, and shall be subject to until such consentstime, if any, as would 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 2.15, such Lender shall not be required obligated to fund any Revolving Loans in connection with an assignment excess of a Term Loan its Commitment under any Tranche as in effect prior to giving effect to such PersonIncremental Commitment provided pursuant to this Section 2.15, (ii) willing any Lender (including any Eligible Assignee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which this Section 2.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Assignee who will become a Lender)) of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of $10,000,000 all Incremental Commitments provided pursuant to this Section 2.15, shall not exceed the Maximum Incremental Commitment Amount and minimum increments of $10,000,000(v) all Revolving Loans (and all interest, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agentfees and other amounts payable thereon), (ii) whether the Incremental Term Loans to be borrowed made pursuant to such an Incremental Term Loan Commitments are Commitment shall be entitled to be an increase in any existing Class the benefits of Term Loans or the guarantees and security provided under the Credit Documents to the other ABL Obligations under the relevant Tranche on a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)pari passu basis.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.15, each Borrower under the relevant Tranche, the Administrative Agent and any each such Lender or other Person whose consent is required as provided above Eligible Assignee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Commitment Agreement, with the effectiveness of such other documentation as Incremental Lender’s Incremental Commitment to occur on the Administrative Agent shall reasonably specify to evidence the date set forth in such Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by Commitment Agreement, which date in any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans event shall be no earlier than the then Latest Maturity Date date on which (w) 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 up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.15 shall have been satisfied, and (Bz) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Weighted Average Life to Maturity of any Incremental Term Loans Total Commitment (and the Total U.S./European Commitment and/or Total Canadian Commitment, as applicable) under, and for all purposes of, this Agreement shall be no shorter than increased by the remaining Weighted Average Life aggregate amount of such Incremental Commitments, (ii) if the Total U.S./European Commitment is then being increased and the relevant Incremental Commitment Agreement so provides, the Total European Sub-Commitment shall be increased by the amount specified in such Incremental Commitment Agreement (not to Maturity exceed the amount of any then outstanding Class of Term Loans;
the related Incremental Commitment); provided that the Administrative Agent shall have consented to such increase, (iii) no Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) to the extent requested by any Incremental Term Lender, Revolving Loan shall participate on Notes will be issued, at the expense of each applicable Borrowers, to such Incremental Lender in conformity with the requirements of Section 2.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 2.15, the Borrowers under the relevant Tranche or Tranches shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a greater result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than pro rata basis with the then outstanding Term Loans Borrowings of the respective such Loans), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between each case to the extent necessary so that all of the Lenders providing under the applicable Incremental Term Loan relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Commitment (and the Borrower (except that any Incremental Term Loans forming an addition Total U.S./European Commitment and/or Total Canadian Commitment, as applicable) pursuant to an existing Class of Term Loans shall have this Section 2.15) and with the same interest rates, optional prepayment provisions relevant Borrowers under the relevant Tranche being jointly and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject severally obligated to pay to the above, respective Lenders any Incremental Term Loans shall be on terms costs of the type referred to in Section 2.11 and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loansamounts, as reasonably determined by the Borrower respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (except rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06preceding sentence shall, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment absent manifest error, be final and the incurrence of Indebtedness thereunder conclusive 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 binding 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderall parties hereto.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower mayBorrowers shall have the right, by upon written notice to the Administrative Agent from time and each Lender (i) on or before the date that is 45 (forty five) days after the Closing Date, to time, request Incremental Term Loan Commitments not up to exceed an amount equal to $50,000,000 to fund the transport and installation of the Assets acquired pursuant to the Supply Agreement and for working capital purposes related to the Assets acquired pursuant to the Supply Agreement (the “Initial Incremental”) and (ii) on or before the date that is 5 (five) days prior to the Maturity Date, to request Incremental Commitments up to an amount equal to $100,000,000 to fund the acquisition of additional power generation assets (the “Additional Asset Incremental”) (and such commitments, the “Incremental Term Commitments”). The decision whether to provide any Incremental Term Commitments shall be subject to each Lender in its sole discretion, and no Lender is obligated to provide Incremental Term Commitments.
(b) Each request from one the Borrowers pursuant to this Section 2.13 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any portion thereof) shall solely be made by any existing Lender or any other Person consented to by the Lenders. In the event there are Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (but or permitted), then the Borrowers shall have the right to allocate such commitments on whatever basis the Borrowers determines is appropriate. For the avoidance of doubt, no such existing Lender shall be required to participate provide an Incremental Commitment except in any such Incremental Term Loan without its consent) absolute and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)discretion.
(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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 1 contract
Sources: Term Loan Agreement (Fermi LLC)
Incremental Commitments. (1a) The At any time prior to the Latest Maturity Date, the Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request Incremental Term Loan Commitments not to exceed $100,000,000 from that one or more Eligible Assignees, in each case, that is a Farm Credit Lender Persons (which, in each case, which may include any the then-existing Lender (but Lenders; provided that no such Lender shall be required obligated to participate provide such Incremental Commitments and may elect or decline in any its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loans under this paragraph (a), it being understood that (w) if such Incremental Term Loan without its consent) and Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall be subject have consented to such consents, if any, as Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in connection with the event of an assignment of a Term Loan to such PersonPerson (such consent not to be unreasonably withheld), (x) willing if such Incremental Revolving Credit Commitment is to be provided by a Person that is not already a Revolving Lender, the Administrative Agent and each Issuing Bank shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment; provided that the minimum aggregate principal amount accepted shall equal the lesser of (i) $10,000,000 or (ii) the aggregate Incremental Commitments proposed to be provided in response to the Borrower’s request. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000, (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum of (i) $200,000,000, (ii) the aggregate principal amount of (x) voluntary prepayments of the Term Loans and any Incremental Equivalent Debt and (y) voluntary prepayments of any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Commitments with respect thereto, in each case under clauses (x) and (y), other than prepayments from proceeds of Long-Term Indebtedness and (iii) any additional amount so long as on the date of incurrence of such Incremental Commitment (subject to the terms of Section 2.17(b) below), in the case of this clause (iii), the Secured Leverage Ratio does not exceed 3.50 to 1.00 on a Pro Forma Basis (assuming the full amount available thereunder is drawn and without netting the cash proceeds thereof) with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute Indebtedness secured on a pari passu basis with the Term Facilities for the purposes of calculating the Secured Leverage Ratio even if unsecured. The Borrower shall be deemed to have utilized the amounts under clause (ii) prior to using the amounts under clause (i) or (iii) and the Borrower shall be deemed to have utilized the amounts under clause (iii) (to the extent compliant therewith) prior to utilization of the amounts under clause (i). The Borrower may arrange for one or more banks or other financial institutions, which may include any Lenders, to extend Revolving Credit Commitments, provide such Incremental Term Loans or increase their applicable existing Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) an aggregate amount equal to the amount of the Incremental Commitment. In the event that one or more of such Persons offer to enter into such Revolving Credit Commitments, subject to satisfaction of the other conditions set forth herein, such Persons, each Issuing Bank and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (an “Incremental Term Loan Commitments being requested (which shall be Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in a minimum amount of $10,000,000 such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent). Each Incremental Assumption Agreement and each Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied, (ii) whether the Incremental Term Loans Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to be borrowed pursuant the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans Commitment and (iii) the date on which such Incremental Term Loan Commitments are Administrative Agent shall have received customary legal opinions or other certificates reasonably requested to become effective (which shall, unless otherwise agreed by the Administrative Agentit in connection with any such transaction; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be not less than ten Business Days after deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such notice is delivered).
Limited Condition Acquisition Agreement, (2) The Loan Partiesas of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment. Nothing contained in this Section 2.17 shall constitute, or otherwise be deemed to be, a commitment on the part of any other Person whose consent is required as provided above Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) The Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Credit Commitments; provided that:
(i) the any commitments to make Incremental Term Loans in the form of additional Initial Term B Loans shall not be guaranteed by any Subsidiaries have the same terms as the Initial Term B Loans, and shall form part of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;Class of Initial Term B Loans,
(ii) any commitments to make Incremental Revolving Loans shall have the same terms as the Initial Revolving Loans and shall form part of the same Class of Initial Revolving Loans,
(Aiii) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term B Loans (“Other Incremental Term Loans”) shall be subject to compliance with clauses (iv) through (viii) below,
(iv) the Maturity Date Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.17 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(v) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), the Other Incremental Term Loans shall have terms, to the extent not consistent with the Initial Term B Loans, that are not more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans,
(vi) 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 any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;with the longest remaining Weighted Average Life to Maturity,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Credit Commitments,
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Credit Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront feesthe Collateral, and
(ix) as the applicable existing Class of Term Loans);
interest rate margins and (subject to clause (v) subject above) amortization schedule applicable to the above, any Incremental Term Loans shall be on terms and made pursuant to documentation to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders providing such or Incremental Term LoanLoan Lenders; provided thatthat in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower under any Incremental Term Loan Commitment is higher than the All-in Yield for the outstanding Initial Term B Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the terms applicable to any effective interest rate margin for the Initial Term B Loans at the time such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except incurred shall be increased to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions All-in Yield for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Initial Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 B Loans is made on such date (and, only equal 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 All-in Yield for such Incremental Term Loans minus 50 basis points. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement or Incremental Term Loan Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incurrence Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of Indebtedness thereunder (assuming that this Section 2.17 and any such commitments are fully drawn on such date) Collateral and use of proceeds therefrom, the Borrower would other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in compliance with Section 8.11 and (z) writing by the Administrative Agent shall have received documents with the Borrower’s consent (not to be unreasonably withheld) and legal opinions as furnished to such matters as are reasonably requested by the other parties hereto. Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the Borrowings outstanding applicable Class of such Class are held by the Lenders of such Class Term Loans on a pro rata basis basis, and (ii) all Revolving Loans in accordance with respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the respective amount applicable Class of Term outstanding Revolving Loans of such Class held by each Lenderon a pro rata basis. Notwithstanding anything to the contrary, this Section 2.17 shall supersede any provisions in Section 2.15 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Shutterfly Inc)
Incremental Commitments. (1a) The Borrower mayCompany may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request prior to the Maturity Date, the establishment of Incremental Term Loan Commitments; provided that the aggregate, cumulative amount of all Incremental Commitments established pursuant to this Section 2.21 shall not to exceed $100,000,000 from one or more Eligible Assignees, in each case, 100,000,000. Each such notice shall specify (i) the date on which the Company proposes that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender the Incremental Commitments shall be required to participate in any such Incremental Term Loan without its consent) and effective, which shall be subject a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such consentsnotice is delivered to the Administrative Agent, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iB) the amount of the Incremental Term Loan Commitments being requested requested, (which shall be in a minimum C) the identity of each Lender or other Person that the Company proposes become an Incremental Revolving Lender with respect thereto, together with the proposed aggregate amount of $10,000,000 and minimum increments of $10,000,000, the Incremental Commitment for each such Lender or remaining permitted amount orother Person (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in each caseits sole discretion, to provide such lesser amount approved by Incremental Commitment and (y) any such Person that is not a Lender must be an Eligible Assignee that is reasonably acceptable to the Administrative Agent), (ii) 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 a new Class of Term Loans Agent and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredeach Issuing Bank).
(2b) The Loan Parties, the Administrative Agent terms 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date conditions of any Incremental Term Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be no earlier than identical to the then Latest Maturity Date terms and (B) conditions of the Weighted Average Life Commitments and Revolving Loans and other extensions of credit made thereunder; provided that if the interest rate spread applicable to Maturity of Revolving Loans to be made under any Incremental Term Commitments (taking into account any applicable interest rate “floor” but not taking into account any upfront fees) exceeds the Applicable Rate or any applicable interest rate “floor” then in effect for Revolving Loans, then the Applicable Rate or interest rate “floor” in respect of Revolving Loans (and participation fees in respect of Letters of Credit) shall automatically be increased, effective on the date of the effectiveness of such Incremental Commitments, to equal the interest rate spread or interest rate floor, or both, as the case may be, applicable to Revolving Loans under the Incremental Commitments.
(c) The Incremental Commitments shall be no shorter than effected pursuant to one or more Incremental Facility Agreements executed and delivered by the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Company, each applicable Borrower, each Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Revolving Lender providing such Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term LoanAdministrative Agent; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment Commitments shall become effective under this Section 2.01(b) unless (wi) no Default or Event of Default shall exist have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving pro forma effect to such Incremental Term Loan Commitment Commitments and the incurrence making of Indebtedness Revolving Loans and other extensions of credit 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 be made on such date, clause (cii) is on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to and the making of Revolving Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Company shall be in compliance with the covenants set forth in Sections 6.12 and 6.13 on a pro forma basis in accordance with Section 1.04(b), (iv) the Company shall make any payments required to be complied withmade pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section 2.21 and (v) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, 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 give effect to the provisions of this Section 2.21.
(d) Upon effectiveness of an Incremental Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a “Lender” and a “Revolving Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders and Revolving Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders and Revolving Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Commitment, shall increase) the Commitment of such Incremental Revolving Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentages of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of the effectiveness of any Incremental Commitments, each Revolving Lender shall be deemed to have assigned to each Incremental Revolving Lender holding such Incremental Commitments, and each such Incremental Revolving Lender shall be deemed to have purchased from each Revolving Lender, in an amount equal to the principal amount thereof (together with accrued and unpaid interest); (y) , such interests in the Revolving Loans and participations in Letters of Credit outstanding on a Pro Forma Basissuch date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Term Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitments. Any Revolving Loans outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Revolving Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time such Revolving Loans will be repaid or refinanced with new Revolving Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Revolving Lenders (including the Incremental Revolving Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Revolving Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other Revolving Lenders so that, after giving effect thereto, all Revolving Loans that are Eurocurrency Loans are held by the Revolving Lenders (including the Incremental Revolving Lenders) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the incurrence minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. Any ABR Loans outstanding on the date of Indebtedness thereunder the effectiveness of such Incremental Commitments shall either be prepaid on such date or refinanced on such date (assuming that subject to the satisfaction of applicable borrowing conditions) with Revolving Loans made on such commitments are fully drawn date by the Revolving Lenders (including the Incremental Revolving Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Incremental Revolving Lender will make ABR Loans by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Revolving Lender’s Incremental Commitment by the Aggregate Commitment (after giving effect to the effectiveness of the Incremental Commitments on such date) and use (ii) such funds will be applied to the prepayment of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested outstanding ABR Loans held by the Administrative Agent. Upon any increase of any existing Class of Term LoansRevolving Lenders other than the Incremental Revolving Lenders, the Lenders shall take any action as may be reasonably required and transferred by the Administrative Agent to ensure that the Borrowings of Revolving Lenders other than the Incremental Revolving Lenders, in such Class are amounts so that, after giving effect thereto, all ABR Loans will be held by the Revolving Lenders of such Class on a pro rata basis in accordance with their then-current Applicable Percentages. On the respective date of the effectiveness of such Incremental Commitments, each Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the aggregate principal amount of Term the Revolving Loans of such Class held Borrower being prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) The Administrative Agent shall notify Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, in each Lendercase advising the Lenders of the details thereof and of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments deemed to have been made pursuant to Section 2.21(e).
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Incremental Commitments. (1a) The MG Borrower mayshall have the right, by written notice in consultation and coordination with the Agent as to all of the Administrative matters set forth below in this Section 2.12., but without requiring the consent of the Agent or the Lenders (except, in either case, as otherwise provided in this Section 2.12.), to request at any time and from time to time, request Incremental Term Loan Commitments not time after the Effective Date and prior to exceed $100,000,000 from the day immediately preceding the second anniversary of the Effective Date that one or more Lenders (and/or one or more other Persons which are Eligible AssigneesAssignees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Loans and participate in Letters of Credit pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment, 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 Agent and the Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.12., such Lender shall not be obligated to fund any Loans in excess of its Commitment (if any) or participate in any Letters of Credit, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.12.; provided, that is a Farm Credit the Lenders shall have at least 10 Business Days following the MG Borrower’s request for Incremental Commitments to decide whether or not to provide any such Incremental Commitments (and, to the extent that any Lender (whichfails to respond within such 10 Business Day period, in each case, may include any existing Lender (but no such Lender shall be required deemed to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing have rejected to provide such an Incremental Term Loans in their sole discretion Commitment), (such Lendersii) any Lender (including any Person which is an Eligible Assignee who will become a Lender) may so provide an Incremental Commitment without the consent of the Agent or any other Lender; provided that (x) any Person that is not a Lender prior to the effectiveness of its Incremental Commitment shall require the consent of the Agent (which consent shall not be unreasonably withheld) to provide an Incremental Commitment pursuant to this Section 2.12., the “Incremental Term Loan Lenders”). Such notice shall set forth (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.12. (including Persons who are Eligible Assignees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, 5,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Commitments permitted to be provided pursuant to this Section 2.12. shall not exceed in the aggregate $10,000,000, (v) the MG Borrower shall not increase the Commitment pursuant to this Section 2.12. more than two times, (vi) the Applicable Margins, Termination Date and all other terms of the Loans to be borrowed incurred pursuant to such an Incremental Term Commitment shall the same in all respects as those applicable to any other Loans, (vii) all Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Loan Commitments are to Documents and shall be an increase in any existing Class of Term secured by the relevant Security Documents, and guaranteed under the Guaranty, on a pari passu basis will all other Loans or a new Class of Term Loans (and related Obligations) secured by each relevant Security Document and guaranteed under the Guaranty, and (iiiviii) the date on each Lender (including any Person which such is an Eligible Assignee who will become a Lender) agreeing to provide an Incremental Term Loan Commitments are requested Commitment pursuant to become effective (which an Incremental Commitment Agreement shall, unless otherwise agreed by subject to the Administrative Agentsatisfaction of the relevant conditions set forth in this Agreement, be not less than ten Business Days after participate in Letters of Credit pursuant to Sections 2.2(j) and make Loans as provided in Section 2.1 and such Loans shall constitute Loans for all purposes of this Agreement and the date such notice is delivered)other applicable Loan Documents.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.12., (I) the Administrative Borrowers, each Guarantor and the Agent and any each such Lender or other Person whose consent is required as provided above Eligible Assignee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative MG Borrower and the Agent an Additional Credit Extension Amendment and such other documentation as Incremental Commitment Agreement, appropriately completed (with the Administrative Agent shall reasonably specify to evidence effectiveness of the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant Commitment provided therein to this clause (d) shall specify occur on the terms of the applicable date set forth in such Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by Commitment Agreement, which date in any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans event shall be no earlier than the then Latest Maturity Date and date on which (Bi) all fees required to be paid in connection therewith at the Weighted Average Life to Maturity time of any such effectiveness shall have been paid, (ii) all Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
Commitment Requirements have been satisfied, (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the all conditions set forth in clauses this Section 2.12. shall have been satisfied and (aiv) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied) and (bII) the Borrowers, each Guarantor, the Agent and each Incremental Lender (as and if applicable) shall execute and deliver to the Agent such additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments are secured by each relevant Security Document (the “Incremental Security Documents”). The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 2.1 shall be deemed modified to reflect the Incremental Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Commitments and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other Loan Document.
(d) At the time of any provision of Incremental Commitments pursuant to this Section 2.12., the Borrowers shall, in coordination with and if requested by the Agent, repay outstanding Loans of certain of the Lenders (notwithstanding the provisions of Section 5.02 are satisfied whether or not a Credit Extension is made on such date 3.2.), and incur additional Loans from certain other Lenders (andincluding the Incremental Lenders), only in each case to the extent a Borrowing is made necessary so that all of the Lenders participate in each outstanding borrowing of Loans pro rata on such date, clause the basis of their respective Commitments (c) is required to be complied with); (y) on a Pro Forma Basis, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateCommitments pursuant to this Section 2.12.) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the Borrowers being obligated to pay to the respective amount Lenders any costs of Term Loans of the type referred to in Section 5.4 in connection with any such Class held by each Lenderrepayment and/or borrowing.
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Incremental Commitments. (1) The Borrower maymay from time to time request new term loan commitments to be established (the “Incremental Commitments”), by written notice in minimum increments of $25,000,000 (or whole multiples of $5,000,000 in excess of $25,000,000), provided that the total combined amount of the Incremental Commitments under this Section 2.12 shall be limited to $200,000,000 in the aggregate. Any Lender or, with the consent of the Administrative Agent from time to time, request Incremental Term Loan Commitments (such consent not to exceed $100,000,000 from one be unreasonably withheld or more Eligible Assigneesdelayed) and the Borrower, in each caseany other additional bank, financial institution or other entity that is not then a Farm Credit Lender (which, in each case, may include any existing elect to become a Lender (but no such hereunder and make an Incremental Commitment. No Lender shall be required have any obligation to participate in make any such Incremental Term Loan without its consent) and Commitment, nor shall be subject the Administrative Agent, the Arrangers or the DB1/ 113000430.10 Syndication Agents have any obligation to such consentslocate banks, if any, as would be required in connection with an assignment of a Term Loan financial institutions or other entities willing to such Person) make any Incremental Commitment. If existing or new Lenders are willing to provide such Incremental Term Loans in their sole discretion Commitments, term loans may be made hereunder (such Lenders, the “Incremental New Term Loan LendersLoans”) by such Lenders (each, a “New Term Lender”). Such notice shall set forth Each Incremental Commitment under this Section 2.12 is subject to the following conditions:
(ia) the amount Each of the Incremental Term representations and warranties made by the Borrower in or pursuant to the Loan Commitments being requested (which Documents shall be true and correct in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount all material respects (or, in each casethe case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, such lesser amount approved by true and correct (after giving effect to any qualification therein) in all respects) on and as of the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to effective date of such Incremental Term Loan Commitments are Commitment as if made on and as of such date except for representations and warranties expressly stated to be an increase relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects (or, in the case of any existing Class representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, true and correct (after giving effect to any qualification therein) in all respects) as of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:earlier date;
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no No Default or Event of Default shall exist giving pro forma effect to have occurred and be continuing on the effective date of such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) or after giving effect thereto and (bii) 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with each financial covenant set forth Section 8.11 10.1 if the ratio or amount referred to therein were to be calculated as of the most recent test period as to which a compliance certificate has been delivered pursuant to Section 9.3 after giving pro forma effect to the incurrence of Indebtedness, if any, under such Incremental Commitments, on the effective date of such Incremental Commitments, and the use of proceeds thereof;
(zc) the Borrower shall have paid any and all agreed-upon fees required in connection with such Incremental Commitments; and
(d) the Administrative Agent shall have received documents each of the following, in form and legal opinions as substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all partnership or other necessary action taken by the Borrower to authorize such increase and (B) all partnership or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Commitments; and (ii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as are reasonably requested by the Administrative Agent. Upon any increase of ; and (iii) to the extent requested by the applicable Lender, a new Note executed by the Borrower, payable to such new Lenders and replacement Notes executed by the Borrower, payable to any existing Class Lenders providing Incremental Commitments. Each request for an Incremental Commitment under this Section 2.12 shall constitute a representation and warranty by the Borrower as of Term Loansthe date of such Incremental Commitment that the conditions contained in this Section 2.12 have been satisfied, and shall be accompanied by a certificate of a Responsible Officer of the Borrower to such effect. Any Incremental Commitments hereunder shall be evidenced by the execution and delivery of an amendment to this Agreement by the Borrower, the Administrative Agent and DB1/ 113000430.10 the New Term Lenders providing such Incremental Commitments, a copy of which shall take any action as may be reasonably required forwarded to each Lender by the Administrative Agent promptly after execution thereof. Each such amendment executed in connection with an Incremental Commitment hereunder may, without the consent of any other Lenders, effect such amendments to ensure that this Agreement and the Borrowings other Loan Documents as may be necessary or appropriate, in the good faith judgment of such Class are held Administrative Agent, to effect the provisions of this Section 2.12 and the Incremental Commitments, subject to approval by the Borrower and the New Term Lenders, as applicable, including without limitation to (x) include the New Term Lenders as “Lenders” hereunder, (y) to include the New Term Loans as “Loans” hereunder, and (z) to include the New Term Lenders and their New Term Loans for purposes of the definition of “Requisite Lenders”. All such Class on a pro rata basis in accordance amendments and joinder agreements entered into with the respective Borrower by the Administrative Agent and the New Term Lenders shall be binding and conclusive on all Lenders. On the effective date of any New Term Commitments, (a) each New Term Lender shall make a New Term Loan to the Borrower in an amount of equal to its New Term Commitment, and (b) each New Term Lender shall become a Lender hereunder with respect to the New Term Commitments and the New Term Loans made pursuant thereto. Any New Term Loans made on such effective date shall have the same terms as the Term Loans made on the Funding Date, shall rank pari passu to the other Loans hereunder, and shall form a part of such Class held by each Lenderthe Loans made on the Funding Date.
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Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Bank 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 requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective 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 shallshall together with any then outstanding Term BA-1 Loans, unless otherwise agreed by Term B-2 Loans or Term B-23 Loans, as applicable, form a single Class of) Term BA-1 Loans, Term B-2 Loans or Term B-23 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentTerm BA-1 Loans, be not less than ten Business Days after the date such notice is deliveredTerm B-2 Loans and Term B-23 Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x)(A) commitments to make additional Term B-1 Loans shall have the same terms as the Term B-1 Loans, and shall form part of the same Class of Term B-1 Loans and[reserved], (B) commitments to make additional Term B-2 Loans shall have the same terms as the Term B-2 Loans, and shall form part of the same Class of Term B-2 Loans, (C) commitments to make additional Term B-3 Loans shall have the same terms as the Term B-3 Loans, and shall form part of the same Class of Term B-3 Loans and (D) commitments to make additional Term A-1 Loans shall have the same terms as the Term A-1 Loans, and shall form part of the same Class of Term A-1 Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding 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 latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving 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 BA-1 Loans, Term B-2 Loans and Term B-23 Loans or, at the option of the Borrower, shall rank junior in right of security with the Term BA-1 Loans, Term B-2 Loans and Term B-23 Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Term A-1 Loans, Term B-12 Loans and/or Term B-23 Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralv) securing the then existing Obligations;below),
(ii) (Aiii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest LatestTerm A-1 Maturity Date applicable to the Term B-1 Loans and Term B-2 Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich 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) the same terms as the Term BA-1 Loans or, Term B-2 Loans or Term B-3 Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(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 any then outstanding Class of the Term Loans;A-1 Loans with the longest remaining Weighted Average Life to Maturity,
(iiiv) no with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrowers, except that the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Term B-13 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 “LIBOR floor” as provided in the following proviso) applicable to such Term B-13 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 “LIBOR floor” being applicable to such Other Incremental 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-13 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Term B-13 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 basis) than the Term A-1 Loans, the Term B-13 Loans and, other than with respect to any mandatory prepayment pursuant to Section 2.11(c), the then outstanding Term B-2 Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments, and
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Facility Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront fees) as then Collateral. Each party hereto hereby agrees that, upon the applicable existing Class effectiveness of Term Loans);
(v) subject to the above, any Incremental Term Loans Assumption Agreement, this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that (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 amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition, to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Business Acquisition (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving pro forma effect to such tranche of Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromLoans); (xii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother 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 Permitted Business 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 (bas applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, 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 Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall 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 Incremental Term Loans), 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, 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 apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Sources: Credit Agreement (Dollar Tree Inc)
Incremental Commitments. (1a) The At any time prior to the Latest Maturity Date, the Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request that one or more Persons (which may include the then-existing Lenders; provided that no Lender shall be obligated to provide such Incremental Commitments and any such Lender may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loans under this paragraph (a), it being understood that (w) if such Incremental Term Loan Commitments Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld), (x) if such Incremental Revolving Credit Commitment is to be provided by a Person that is not already a Revolving Lender, the Administrative Agent and each Issuing Bank shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000 (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum of (i) the greater of $100,000,000 from one or more Eligible Assignees116,000,000 and 100% of Consolidated EBITDA for the most recently ended Test Period as of such time, (ii) the aggregate principal amount of voluntary prepayments and loan buybacks pursuant to Dutch auctions and open market purchases, in the amount actually paid to retire such Indebtedness in connection with such buy-backs of (x) the Term Loans and any Incremental Equivalent Debt, (y) any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Commitments with respect thereto and (z) other Indebtedness secured on a pari passu basis to the Facilities, in each case, that is a Farm Credit Lender other than prepayments from proceeds of Long-Term Indebtedness or prepayments of Indebtedness incurred under clause (whichiii) below (including, without limitation, Indebtedness reclassified as having been incurred under clause (iii) below) and (iii) any additional amount so long as on the date of incurrence of such Incremental Commitment (subject to the terms of Section 2.17(b) below), in each casethe case of this clause (iii), the First Lien Net Leverage Ratio on a Pro Forma Basis (assuming the full amount available thereunder is drawn and including the use of proceeds of all Indebtedness but without netting the cash proceeds thereof) does not exceed (A) 3.00 to 1.00 or (B) at the Borrower’s option, if incurred to finance a Permitted Acquisition or other similar Investment permitted by Section 6.04, the First Lien Net Leverage Ratio as in effect immediately prior to the consummation of such Permitted Acquisition or Investment (this clause (iii) the “Incremental Ratio Amount”). The Borrower may arrange for one or more banks or other financial institutions, which may include any existing Lender (but no such Lender shall be required Lenders, to participate in any such Incremental Term Loan without its consent) and shall be subject to such consentsextend Revolving Credit Commitments, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans or increase their applicable existing Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) an aggregate amount equal to the amount of the Incremental Commitment. In the event that one or more of such Persons offer to enter into such Revolving Credit Commitments, subject to satisfaction of the other conditions set forth herein, such Persons, each Issuing Bank and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (an “Incremental Term Loan Commitments being requested (which shall be Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in a minimum amount of $10,000,000 such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent). Each Incremental Assumption Agreement and each Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied, (ii) whether the Incremental Term Loans Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to be borrowed pursuant the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans Commitment and (iii) the date on which such Incremental Term Loan Commitments are Administrative Agent shall have received customary legal opinions or other certificates reasonably requested to become effective (which shall, unless otherwise agreed by the Administrative Agentit in connection with any such transaction; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Condition Transaction (“LCT-Related Incremental Commitments”), clause (i) of this sentence shall be not less than ten Business Days after deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Transaction Agreement, no Event of Default or Default is in existence or would result from entry into such notice is delivered).
Limited Condition Transaction Agreement, (2) The Loan Partiesas of the date of the initial borrowing pursuant to such LCT-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Transaction Agreement and (4) as of the date of the initial borrowing pursuant to such LCT-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such LCT-Related Incremental Commitment. Nothing contained in this Section 2.17 shall constitute, or otherwise be deemed to be, a commitment on the part of any other Person whose consent is required as provided above Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) The Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, shall specify the terms of the applicable Incremental Term Loans; Loans and/or Incremental Revolving Credit Commitments; provided that:
(i) the any commitments to make Incremental Term Loans in the form of additional Initial Term B Loans (“Additional Term B Loans”) shall not be guaranteed by any Subsidiaries have the same terms (other than upfront fees) as the Initial Term B Loans, and shall form part of the Borrower same Class of Initial Term B Loans,
(ii) any commitments to make Incremental Revolving Loans shall have the same terms (other than upfront fees) as the Initial Revolving Loans and shall form part of the same Class of Initial Revolving Loans,
(iii) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term B Loans (“Other Incremental Term Loans”) shall be subject to compliance with clauses (iv) through (ix) below (without limiting the effect of such clauses in respect of Additional Term B Loans and Incremental Revolving Loans, as set forth therein),
(iv) Incremental Loans shall be secured by Liens that do not guarantee rank equal in priority with the Liens securing the existing Loans and shall be secured on a pari passu basis by rank equal in payment priority with the same Collateral (and no additional collateral) securing the then existing Obligations;Loans,
(ii) (Av) the Maturity Date final maturity date of any Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, prepayments, final maturity date and ranking as to security and payment priority (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), the Other Incremental Term Loans shall have terms, to the extent not consistent with the Initial Term B Loans, that are not more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans (except to the extent (x) such terms are conformed (or added) in for the benefit of the Initial Term B Loans pursuant to an amendment to this Agreement subject solely to the reasonable satisfaction of the Administrative Agent and the Borrower, (y) such terms are applicable solely to periods after the Latest Maturity Date of the Initial Term B Loans existing at the time of the incurrence of such incremental facility or (z) such terms reflect market terms and conditions (taken as a whole) at the time of incurrence, issuance or effectiveness (as determined by the Borrower in good faith),
(vi) the Weighted Average Life to Maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any the then outstanding Class of Term Loans;Loans with the longest remaining Weighted Average Life to Maturity,
(iiivii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan shall Commitments or Incremental Revolving Credit Commitments,
(viii) the Other Incremental Term Loans, for purposes of (x) any voluntary prepayments, may provide for the ability to participate on a pro rata basis, less than pro rata basis or greater than pro rata basis and (y) mandatory prepayments, may provide for the ability to participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis with the then outstanding basis, except in respect of Refinancing Term Loans in any mandatory prepayment;and Refinancing Notes).
(ivix) Incremental Term Loans and Incremental Revolving Credit Commitments shall have such interest rates, optional prepayment provisions and fees as may not be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that secured by 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 (assets other than upfront fees) as the applicable existing Class of Term Loans);Collateral, and
(vx) the interest rate margins, currency, pricing, discounts, rate floors, fees and (subject to the clause (vi) above, any ) amortization schedule applicable to Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such applicable Incremental Term Loan; Loan Lenders; provided thatthat in the event that the All-in Yield for any Incremental Term Loan is higher than the All-in Yield for the outstanding Initial Term B Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the terms applicable to any effective interest rate margin for the Initial Term B Loans at the time such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except incurred shall be increased to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions All-in Yield for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Initial Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 B Loans is made on such date (and, only equal 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 All-in Yield for such Incremental Term Loans minus 50 basis points. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement or Incremental Term Loan Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incurrence Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of Indebtedness thereunder (assuming that this Section 2.17 and any such commitments are fully drawn on such date) Collateral and use of proceeds therefrom, the Borrower would other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in compliance with Section 8.11 and (z) writing by the Administrative Agent shall have received documents with the Borrower’s consent (not to be unreasonably withheld) and legal opinions as furnished to such matters as are reasonably requested by the other parties hereto. Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the Borrowings outstanding applicable Class of such Class are held by the Lenders of such Class Term Loans on a pro rata basis basis, and (ii) all Revolving Loans in accordance with respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the respective amount applicable Class of Term outstanding Revolving Loans of such Class held by each Lenderon a pro rata basis. Notwithstanding anything to the contrary, this Section 2.17 shall supersede any provisions in Section 2.15 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (LendingTree, Inc.)
Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Bank 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 requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective 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 shallshall together with any then outstanding Term B-1 Loans or Term B-2 Loans, unless otherwise agreed by as applicable, form a single Class of) Term B-1 Loans or Term B-2 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredTerm B-1 Loans and Term B-2 Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x)(A) commitments to make additional Term B-1 Loans shall have the same terms as the Term B-1 Loans, and shall form part of the same Class of Term B-1 Loans and (B) commitments to make additional Term B-2 Loans shall have the same terms as the Term B-2 Loans, and shall form part of the same Class of Term B-2 Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding 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 latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving 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-1 Loans and Term B-2 Loans or, at the option of the Borrower, shall rank junior in right of security with the Term B-1 Loans and Term B-2 Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Term B-1 Loans and/or Term B-2 Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralv) securing the then existing Obligations;below),
(ii) (Aiii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to the Term B-1 Loans and Term B-2 Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich 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) the same terms as the Term B-1 Loans or Term B-2 Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(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 any then outstanding Class of the Term Loans;Loans with the longest remaining Weighted Average Life to Maturity,
(iiiv) no with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrowers, except that the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Term B-1 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 “LIBOR 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 “LIBOR floor” being applicable to such Other Incremental 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 Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 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 basis) than the Initial Term A-1 Loans, the Term B-1 Loans and, other than with respect to any mandatory prepayment pursuant to Section 2.11(c), the then outstanding Term B-2 Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments, and
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Facility Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront fees) as then Collateral. Each party hereto hereby agrees that, upon the applicable existing Class effectiveness of Term Loans);
(v) subject to the above, any Incremental Term Loans Assumption Agreement, this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that (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 amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition, to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Business Acquisition (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving pro forma effect to such tranche of Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromLoans); (xii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother 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 Permitted Business 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 (bas applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, 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 Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall 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 Incremental Term Loans), 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, 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 apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Sources: Credit Agreement (Dollar Tree Inc)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent (the “Incremental Request Notice”) from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount, in the aggregate, from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person▇▇▇▇▇▇) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion, provided that each Incremental Term Lender and/or Incremental Revolving Facility shall be subject to the approval of (x) the Administrative Agent (which approval shall not be unreasonably withheld) unless no consent of the Administrative Agent would be required for an assignment to such Lendersperson pursuant to Section 9.04(b)(i)(B) and (y) the L/C Issuer and the Swingline Lender (which approval shall not be unreasonably withheld) unless no consent of the L/C Issuer and the Swingline Lender would be required for an assignment to such person pursuant to Section 9.04(b)(i)(C); provided, the “further, that any existing Lender approached to provide all or a portion of such Incremental Term Loan Lenders”)Commitments and/or Incremental Revolving Facility Commitments may elect or decline, in its sole discretion, to provide such Commitments. Such notice The Incremental Request 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 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by and (iii) (a) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after Term A Loan Commitments (the date “Incremental Term A Loan Commitment”), Term B Loan Commitments (the “Incremental Term B Loan Commitment”) or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the Term A Loans or the Term B Loans (“Other Term Loans”) and/or (b) whether such notice is deliveredIncremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing different from the Revolving Facility Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
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 not be guaranteed by any Subsidiaries of have (x) the Borrower that do not guarantee same terms as the existing Term B Loans and or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Incremental Term A Loan established after the Amendment No. 3 Effective Date shall be no earlier than the 2020 Term A Facility Maturity Date and the final maturity date of any Incremental Term B Loan or Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and Date, (Biii) the Weighted Average Life to Maturity of any Incremental Term Loans A Loan established after the Amendment No. 3 Effective Date shall not be no shorter than the remaining Weighted Average Life to Maturity of the existing 2020 Term A Loans and the Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term B Loan shall participate on a greater than pro rata basis with the then outstanding or Other Term Loans in any mandatory prepayment;
shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term B Loans, and (iv) Incremental Term Loans except as to pricing (which shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), the Other Revolving Loans shall not mature prior to the Latest Revolving Facility Maturity Date and shall have (x) the same terms as the Revolving Facility or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent and (v) until the date that is eighteen (18) months after the Closing Date, in the event that the Applicable Margin (at any analogous point in the Pricing Grid) for any Incremental Term Loan; provided thatB Loans or Other Term Loans is greater than the Applicable Margin for the existing Term B Loans by more than 25 basis points, then the terms applicable Applicable Margin for the existing Term B Loans shall be increased to any such the extent necessary so that the Applicable Margin (at each analogous point in the Pricing Grid) for the Incremental Term B Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, Other Term Loans is 25 basis points higher than the terms Applicable Margin for the existing Term B Loans; provided, further, that in determining the Applicable Margin applicable to the then outstanding Commitments existing Term B Loans and the Incremental Term B Loans or Other Term Loans, as reasonably determined (x) original issue discount or upfront or similar fees (collectively, “OID”) payable by the Borrower to the Lenders of the existing Term B Loans or the Incremental Term B Loans or Other Term Loans, in the primary syndication thereof shall be included (except with OID being equated to interest based on an assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to arrangers (or their respective affiliates) shall be excluded; and (z) if the ABR or Eurocurrency Rate “floor” for the Incremental Term B Loans or Other Term Loans is greater than the ABR or Eurocurrency Rate “floor,” respectively, for the existing Term B Loans the difference between such floor for the Incremental Term B Loans or Other Term Loans and the existing Term B Loans shall be equated to an increase in the Applicable Margin for purposes of this clause (v). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(g); and. 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.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.22 unless (w) on the date of such effectiveness, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and be continuing or would result therefrom.
(d) Each of 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 and the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional 2018 Term A Loans, 2020 Term A Loans or Term B Loans, when originally made, are included in each Borrowing of outstanding 2018 Term A Loans, 2020 Term A Loans or Term B Loans, as applicable, on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments that are Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) The Incremental Term Loans and Incremental Revolving Loans shall rank pari passu or junior in right of such Class are held by the Lenders payment and of such Class on a pro rata basis in accordance security with the respective amount of Term Loans of such Class held by each Lenderand Revolving Facility Loans.
Appears in 1 contract
Sources: Credit Agreement (EVERTEC, Inc.)
Incremental Commitments. (1) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or increases in the Revolving Commitments of any Class (a “Revolving Commitment Increase”) or the establishment of a new Class of Revolving Commitments or Extended Revolving Commitments (such new Class of Commitments, an “Additional Revolving Commitment” and, together with any Revolving Commitment Increases, the “Incremental Revolving Commitments”), as applicable, in an aggregate amount for any such incurrence (excluding Refinancing Term Loans and any Additional Revolving Commitments that are established concurrently with the reduction in any then existing Class of Revolving Commitments) not to exceed $100,000,000 the then remaining Incremental Amount, from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Assignees (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan or additional Revolving Commitment without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).be
(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 CommitmentCommitment or Incremental Revolving Commitments. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Commitments; provided that:
: (i) any Revolving Commitment Increases shall have the same terms as the then existing Revolving Commitments (except for upfront and arrangement fees); (ii) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower Company that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
; (iiiii) (Aa) other than Permitted Inside Maturity Facilities, the Maturity Date of any Incremental Term Loans or Additional Revolving Commitments shall be no earlier than the then Latest Maturity Date and Date, (Bb) the Weighted Average Life to Maturity of any no Incremental Term Loans shall require scheduled amortization payments in excess of 15.0% per annum of the original principal amount thereof and (c) there shall be no shorter than the remaining Weighted Average Life to Maturity scheduled amortization of any then outstanding Class Additional Revolving Commitment prior to the Latest Maturity Date of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
Revolving Commitment; (iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
[reserved]; (v) [reserved]; (vi) subject to the above, any Incremental Term Loans and Additional Revolving Commitments shall be on terms and pursuant to documentation to be determined by the Borrower Company and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans or Additional Revolving Commitments (except pricing, fees, premiums, discounts or as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower Company and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower Company (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld). 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 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective 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 shallshall together with any then outstanding Initial2017 Term B Loans form a single Class of) Initial2017 Term B Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredInitial2017 Term B Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x) commitments to make additional Initial2017 Term B Loans shall have the same terms as the Initial2017 Term B Loans, and shall form part of the same Class of Initial2017 Term B Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then (and theretofore) outstanding, the Revolving Facility Commitments with the then latest 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 Initial2017 Term B Loans or, at the option of the Lux Borrower, shall rank junior in right of security with the Initial2017 Term B Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Initial2017 Term B Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralv) securing the then existing Obligations;below),
(ii) (Aiii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich 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) the same terms as the Initial2017 Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(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 any then outstanding Class of the Term Loans;Loans with the Latest Maturity Date,
(iiiv) no with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrowers, except that the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Initial2017 Term B Loans or the Incremental Term B-1 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 “LIBOR floor” as provided in the following proviso) applicable to such Initial2017 Term B Loans or such Incremental Term B-1 Loans, as the case may be, 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 “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 Initial2017 Term B Loans or the Incremental Term B-1 Loans, as the case may be, shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Initial2017 Term B Loans or such Incremental Term B-1 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 with basis) than the then outstanding Initial2017 Term B Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrowers) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments, and
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Facility Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Parent or its Subsidiaries other than upfront fees) as the applicable existing Class Collateral. Each party hereto hereby agrees that, upon the effectiveness of Term Loans);
(v) subject to the above, any Incremental Term Loans Assumption Agreement, this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that (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 amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided that, in the event that any tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Business Acquisition (provided that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving pro forma effect to such tranche of Incremental Term Loan Commitment Loans); (ii) the representations and warranties of the Parent and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions Borrowers set forth in clauses this Agreement shall be true and correct in all material respects (aother 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 Permitted Business 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 customary “specified representations” and those representations of the seller or the target company (bas applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, 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 Borrowing is made on result of a breach of such date, clause (c) is required to be complied with)representations; (yiii) on a Pro Forma BasisBasis as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent pursuant to Section 5.04(a) or (b) (or, giving effect if prior thereto, pursuant to Section 4.02(h)) as if (x) in the case of any Incremental Term Loans, such Incremental Term Loans and had been outstanding on the incurrence last day of Indebtedness thereunder such fiscal quarter of the Parent for testing compliance therewith or (assuming that y) in the case of any Incremental Revolving Facility Commitments, all Revolving Facility Loans available to the Borrowers, including any such commitments are fully drawn Incremental Revolving Facility Commitment, had been outstanding on the last day of such date) and use fiscal quarter of proceeds therefromthe Parent for testing compliance therewith, the Borrower would Parent shall be in compliance with the Financial Covenant (if then in effect) (at any time prior to the first test date pursuant to said Section 8.11 6.12, as if the initially applicable covenant levels were then in effect); and (ziv) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall 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 Incremental Term Loans), 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, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Sources: Credit Agreement (Mallinckrodt PLC)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to timetime after the Effective Date, request Incremental Term Loan Commitments not to exceed $100,000,000 from in respect of one or more Eligible Assignees, Classes of term loans in each case, an aggregate amount at any time that is a Farm Credit Lender would not otherwise violate clause (which, in each case, c) of this Section at such time. The Incremental Commitments will be provided by Incremental Lenders (which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans Commitments in their sole discretion (own discretion. Any such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount 20,000,000 or, in each case, such lesser amount approved as permitted by the Administrative Agent, or equal to the maximum amount that can be incurred subject to clause (c) of this Section at such time), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (any such date, an “Incremental Effective Date”) and (iii) the interest rate, amortization, maturity and other terms being requested with respect thereto (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredshall comply with clause (b) below).
(2b) The Loan Parties, the Administrative Agent terms and conditions of any other Person whose consent is required as provided above Incremental Commitments and Loans to be made thereunder 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of be determined by the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of Lenders and the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by as set forth in the same Collateral applicable Incremental Facility Agreement; provided that (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (Bi) the Weighted Average Life to Maturity of any Incremental Term such Loans shall be no shorter than than, and the remaining Weighted Average Life Maturity Date applicable to such Loans shall be no earlier than, the latest Maturity Date in effect at the time of any then outstanding Class incurrence of Term such Loans;
, (ii) except as to interest rates, fees, other pricing terms, amortization, final maturity date and participation in prepayments, all representations and warranties, affirmative or negative covenants or events of default applicable for the benefit of Incremental Lenders having or holding such Incremental Commitments or Loans shall also be applicable for the benefit of all the Lenders and (iii) no Incremental Term Loan shall such Loans may participate on a greater pro rata basis or a less than pro rata basis with the then outstanding Term Loans (but not greater than a pro rata basis) in any voluntary or mandatory prepayment;repayments or prepayments hereunder.
(ivc) The Incremental Term Loans Commitments of any Class shall have be effected pursuant to an Incremental Facility Agreement executed and delivered by the Borrower, each Incremental Lender providing such interest rates, optional prepayment provisions Incremental Commitments and fees as the Administrative Agent; provided that (i) the principal amount of Indebtedness that may be agreed between Incurred under an Incremental Commitment on any date shall not exceed the Lenders providing maximum principal amount of Secured Indebtedness that may be Incurred and secured by the Liens securing such Indebtedness, as of the date such Indebtedness is Incurred, after giving pro forma effect to the Incurrence of such Secured Indebtedness and the application of proceeds therefrom on such date, without causing a Default or Event of Default hereunder as a result of the Incurrence of such Secured Indebtedness on such date, (ii) the Class of Loans to be made under such Incremental Commitments shall be made thereunder on the effective date of the applicable Incremental Term Loan Commitments Facility Agreement and (iii) 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 existing Class of Term Loans);
(v) subject delivered to the aboveAdministrative Agent such legal opinions, any Incremental Term Loans board resolutions, secretary’s certificates, officer’s certificates and other customary documents as shall reasonably be on terms and pursuant to documentation to be determined requested by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except Administrative Agent in connection therewith. The Administrative Agent shall promptly notify each Lender as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiarieseffectiveness of each Incremental Facility Agreement. Each Incremental Facility Agreement may, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require without the consent of any Lender) , effect such amendments to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment Agreement and the incurrence other Loan Documents as may be necessary or appropriate, in the opinion 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. , to give effect to the provisions of this Section 2.23.
(d) All Incremental Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations under this Agreement and the other Loan Documents.
(e) Upon any increase the effectiveness of an Incremental Commitment of any existing Class Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Commitments and Loans of such Class held the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by each Lenderall agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
Appears in 1 contract
Incremental Commitments. (1a) The At any time prior to the Latest Maturity Date, the Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request Incremental Term Loan Commitments not to exceed $100,000,000 from that one or more Eligible Assignees, in each case, that is a Farm Credit Lender Persons (which, in each case, which may include any the then-existing Lender (but Lenders; provided that no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing obligated to provide such Incremental Commitments and may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loans under this paragraph (a), it being understood that (x) if such Incremental Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment; provided that the minimum aggregate principal amount accepted shall equal the lesser of (i) $10,000,000 or (ii) the aggregate Incremental Commitments proposed to be provided in response to the Borrower’s request. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000 (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum of (i) $225,000,000, (ii) the aggregate principal amount of (x) voluntary prepayments of the Term Loans and any Incremental Equivalent Debt and (y) voluntary prepayments of any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Commitments with respect thereto, in each case under clauses (x) and (y), other than prepayments from proceeds of long-term Indebtedness and (iii) any additional amount so long as on the date of incurrence of such Incremental Commitment (subject to the terms of Section 2.17(b) below), in the case of this clause (iii), the First Lien Net Leverage Ratio does not exceed 2.00 to 1.00 on a Pro Forma Basis (assuming the full amount available thereunder is drawn) (with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute Indebtedness secured on a pari passu basis with the Initial Term B Facility for the purposes of calculating the First Lien Net Leverage Ratio even though not so secured); provided that the cash and Permitted Investments constituting the proceeds received in respect of such Incremental Loans or Incremental Commitments shall not be included as Unrestricted Cash and Cash Equivalents for purposes of determining the First Lien Net Leverage Ratio pursuant to this clause (iii). The Borrower shall be deemed to have utilized the amounts under clause (ii) prior to using the amounts under clause (i) or (iii) and the Borrower shall be deemed to have utilized the amounts under clause (iii) (to the extent compliant therewith) prior to utilization of the amounts under clause (i). The Borrower may arrange for one or more banks or other financial institutions reasonably acceptable to the Administrative Agent, which may include any Lenders, to extend Revolving Credit Commitments, provide Incremental Term Loans or increase their applicable existing Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) an aggregate amount equal to the amount of the Incremental Commitment. In the event that one or more of such Persons offer to enter into such Revolving Credit Commitments, and such Persons, the Loan Parties, the Borrower and the Administrative Agent agree as to the amount of such Revolving Credit Commitments to be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Borrower in connection therewith, such Persons and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement or Incremental Term Loan Commitments being requested Amendment, as applicable. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (which shall be an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in a minimum amount of $10,000,000 such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the . Each Incremental Term Loans to be borrowed pursuant to such Assumption Agreement and each Incremental Term Loan Commitments are Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be an increase necessary or appropriate, in any existing Class the reasonable opinion of Term Loans or a new Class of Term Loans the Borrower and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Financial Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied and (ii) the Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be not less than ten Business Days after deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such notice is delivered).
Limited Condition Acquisition Agreement, (2) The Loan Partiesas of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment. Nothing contained in this Section 2.17 shall constitute, or otherwise be deemed to be, a commitment on the part of any other Person whose consent is required as provided above Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) The Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Credit Commitments; provided that:
(i) the any commitments to make Incremental Term Loans in the form of additional Initial Term B Loans shall not be guaranteed by any Subsidiaries have the same terms as the Initial Term B Loans, and shall form part of the Borrower that do not guarantee same Class of Initial Term B Loans, (x) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the existing Initial Term B Loans and (“Other Incremental Term Loans”) shall be secured on a pari passu basis by the same Collateral subject to compliance with clauses (and no additional collateralii) securing the then existing Obligations;through (vi) below,
(ii) the Other Incremental Term Loans incurred pursuant to clause (Aa) of this Section 2.17 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(iii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (Bwhich 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 terms, to the extent not consistent with the Initial Term B Loans, shall not be more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans,
(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 any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;with the longest remaining Weighted Average Life to Maturity,
(ivv) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Credit Commitments,
(except that any vi) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Credit Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront fees) as the applicable existing Class of Term Loans);Collateral, and
(vvii) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the above, any Incremental Term Loans shall be on terms and made pursuant to documentation to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders providing such or Incremental Term LoanLoan Lenders; provided thatthat in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower under any Incremental Term Loan Commitment is higher than the All-in Yield for the outstanding Initial Term B Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the terms applicable to any effective interest rate margin for the Initial Term B Loans at the time such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except incurred shall be increased to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions All-in Yield for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Initial Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 B Loans is made on such date (and, only equal 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 All-in Yield for such Incremental Term Loans minus 50 basis points. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement or Incremental Term Loan Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incurrence Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of Indebtedness thereunder (assuming that this Section 2.17 and any such commitments are fully drawn on such date) Collateral and use of proceeds therefrom, the Borrower would other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in compliance with Section 8.11 and (z) writing by the Administrative Agent shall have received documents with the Borrower’s consent (not to be unreasonably withheld) and legal opinions as furnished to such matters as are reasonably requested by the other parties hereto. Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the Borrowings outstanding applicable Class of such Class are held by the Lenders of such Class Term Loans on a pro rata basis basis, and (ii) all Revolving Loans in accordance with respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the respective amount applicable Class of Term outstanding Revolving Loans of such Class held by each Lenderon a pro rata basis. Notwithstanding anything to the contrary, this Section 2.17 shall supersede any provisions in Section 2.15 or Section 9.02 to the contrary.
Appears in 1 contract
Incremental Commitments. (1a) The So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower mayshall have the right, with the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) and in coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.23, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Closing Date, that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders as provided below) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and in the respective Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swing Line Loans pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by written notice 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 from time an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.23, such Lender shall not be obligated to timefund any Revolving Loans in excess of its Commitment or participate in any Letters of Credit or Swing Line Loans in excess of its Pro Rata Share, request in each case as in effect prior to giving effect to such Incremental Term Loan Commitment provided pursuant to this Section 2.23, (ii) any Lender (including any Eligible Assignee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 2.23 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Assignee who will become a lender)) of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 2.23 shall not exceed the Maximum Incremental Commitment Amount, (v) if the Applicable Commitment Fee Percentage and/or Applicable Margins with respect to exceed $100,000,000 from one Commitments to be provided or more Revolving Loans to be incurred pursuant to an Incremental Commitment shall be higher in any respect than those applicable to any other Commitments or Revolving Loans, the Applicable Commitment Fee Percentage and/or Applicable Margins, as the case may be, for the other Commitments and Revolving Loans and extensions of credit hereunder shall be automatically increased as and to the extent needed to eliminate any deficiencies in accordance with the definition of “Applicable Commitment Fee Percentage” or “Applicable Margin” contained herein (such increase, the “Additional Commitment Fee” or “Additional Margin”, as the case may be), (vi) all Revolving Loans thereunder (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement, and guaranteed under the Guaranty, on a pari passu basis with all other Obligations secured by the Pledge and Security Agreement and guaranteed under the Guaranty, and (vii) each Lender (including any Eligible AssigneesAssignee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall be reasonably satisfactory to the Administrative Agent, each Issuing Bank and the Swing Line Lender and shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swing Line Loans and Letters of Credit pursuant to Sections 2.2(b)(v) and 2.3(e), respectively, and make Revolving Loans as provided in Section 2.1(a), in each case, that is a Farm under the Total Commitment, and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the other applicable Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)Document.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.23, (I) the Borrower, each Guarantor Subsidiary, the Administrative Agent and any each such Lender or other Person whose consent is required as provided above Eligible Assignee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Commitment Agreement, with the effectiveness of such other documentation as Incremental Lender’s Incremental Commitment to occur on the Administrative Agent shall reasonably specify to evidence the date set forth in such Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by Commitment Agreement, which date in any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans event shall be no earlier than the then Latest Maturity Date and date on which (Bw) all fees required to be paid in connection therewith at the Weighted Average Life to Maturity time of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans such effectiveness shall have such interest rates, optional prepayment provisions and been paid (including any up-front or arrangement fees as may 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 existing Class of Term Loans);
(v) subject owing to the above, Administrative Agent (or any Incremental Term Loans shall be on terms and pursuant to documentation to be determined affiliate thereof) agreed upon by the Borrower and the Lenders providing such Incremental Term Loan; provided thatin writing), the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in clauses (a) and (b) of this Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and2.23 shall have been satisfied, 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) all other mutually agreed upon conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied and (II) the Borrower, each Guarantor Subsidiary, the Collateral Agent and each Incremental Lender (as applicable) shall execute and deliver to the Administrative Agent and the Collateral Agent such additional Collateral Documents and/or amendments to the Collateral Documents as the Administrative Agent may reasonably request which are necessary to ensure that all Revolving Loans incurred pursuant to the Incremental Commitments and any Additional Commitment Fee and/or Additional Margin are secured by each relevant Collateral Document. The Administrative Agent shall have received documents and legal opinions promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such matters as are reasonably time, (i) the Total Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Document, (iii) Appendix A shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) to the extent requested by any Incremental Lender, Revolving Loan Notes will be issued, at the expense of the Borrower, to such Incremental Lender in conformity with the requirements of Section 2.6.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 2.23, (I) the Borrower shall, in coordination with the Administrative Agent. Upon , repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders), in each case to the extent necessary so that all of the Lenders participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments (after giving effect to any increase in the Total Commitment pursuant to this Section 2.23) and with the Borrower being obligated to pay to the respective Lenders any costs of the type referred to in Section 2.17(c) in connection with any existing Class such repayment and/or incurrence and (II) there shall be an automatic adjustment to the participations hereunder in Letters of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are Credit and Swing Line Loans held by the Lenders of each Lender so that each such Class on a pro rata basis Lender shares ratably in such participations in accordance with their Commitments (after giving effect to the respective amount establishment of Term Loans of such Class held by each Lenderany Incremental Commitment). The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (REV Group, Inc.)
Incremental Commitments. (1a) The At any time prior to the Latest Maturity Date, the Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request Incremental Term Loan Commitments not to exceed $100,000,000 from that one or more Eligible Assignees, in each case, that is a Farm Credit Lender Persons (which, in each case, which may include any the then-existing Lender (but Lenders; provided that no such Lender shall be required obligated to participate provide such Incremental Commitments and may elect or decline in any its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loans under this paragraph (a), it being understood that (w) if such Incremental Term Loan without its consent) and Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall be subject have consented to such consents, if any, as Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in connection with the event of an assignment of a Term Loan to such PersonPerson (such consent not to be unreasonably withheld), (x) willing if such Incremental Revolving Credit Commitment is to be provided by a Person that is not already a Revolving Lender, the Administrative Agent and each Issuing Bank shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment; provided that the minimum aggregate principal amount accepted shall equal the lesser of (i) $10,000,000 or (ii) the aggregate Incremental Commitments proposed to be provided in response to the Borrower’s request. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000, (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum of: (i) (x) $50,000,000, plus (y) an amount equal to 1.0x of Consolidated EBITDA for the most recently completed four fiscal quarter period for which financial statements are required to be delivered pursuant to Sections 5.01(a) or (b) prior to the date of the incurrence of such Incremental Commitment, plus (z) an amount up to $75,000,000; provided, any such amount under this clause (i)(z) is incurred within 90 days following the Effective Date (the “Post-Closing Period”), (ii) the aggregate principal amount of (x) voluntary prepayments of the Term Loans and any Incremental Equivalent Debt and (y) voluntary prepayments of any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Commitments with respect thereto, in each case under clauses (x) and (y), other than prepayments from proceeds of Long-Term Indebtedness and (iii) any additional amount so long as on the date of incurrence of such Incremental Commitment (subject to the terms of Section 2.17(b) below), in the case of this clause (iii), the Secured Leverage Ratio does not exceed 1.50 to 1.00 on a Pro Forma Basis (assuming the full amount available thereunder and, prior to the Initial Term A Termination Date, any unused Initial Term A Loan Commitments are drawn and without netting the cash proceeds thereof) with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute Indebtedness secured on a pari passu basis with the Term Facilities for the purposes of calculating the Secured Leverage Ratio even if unsecured. The Borrower shall be deemed to have utilized the amounts under clause (ii) prior to using the amounts under clause (i) or (iii) and the Borrower shall be deemed to have utilized the amounts under clause (iii) (to the extent compliant therewith) prior to utilization of the amounts under clause (i). The Borrower may arrange for one or more banks or other financial institutions, which may include any Lenders, to extend Revolving Credit Commitments, provide such Incremental Term Loans or increase their applicable existing Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) an aggregate amount equal to the amount of the Incremental Commitment. In the event that one or more of such Persons offer to enter into such Revolving Credit Commitments, subject to satisfaction of the other conditions set forth herein, such Persons, each Issuing Bank and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (an “Incremental Term Loan Commitments being requested (which shall be Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in a minimum amount of $10,000,000 such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent). Each Incremental Assumption Agreement and each Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied, (ii) whether the Incremental Term Loans Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to be borrowed pursuant the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans Commitment and (iii) the date on which such Incremental Term Loan Commitments are Administrative Agent shall have received customary legal opinions or other certificates reasonably requested to become effective (which shall, unless otherwise agreed by the Administrative Agentit in connection with any such transaction; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be not less than ten Business Days after deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such notice is delivered).
Limited Condition Acquisition Agreement, (2) The Loan Partiesas of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment. Nothing contained in this Section 2.17 shall constitute, or otherwise be deemed to be, a commitment on the part of any other Person whose consent is required as provided above Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) The Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Credit Commitments; provided that:
(i) the any commitments to make Incremental Term Loans in the form of additional Initial Term A Loans shall not be guaranteed by any Subsidiaries have the same terms as the Initial Term A Loans, and shall form part of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;Class of Initial Term A Loans,
(ii) any commitments to make Incremental Revolving Loans shall have the same terms as the Initial Revolving Loans and shall form part of the same Class of Initial Revolving Loans,
(Aiii) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term A Loans (“Other Incremental Term Loans”) shall be subject to compliance with clauses (iv) through (viii) below,
(iv) the Maturity Date Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.17 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(v) (i) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date 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), the Other Incremental Term Loans shall have terms, to the extent not consistent with the Initial Term A Loans, that are not more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term A Loans and (Bii) for purposes of prepayments, Other Incremental Term Loans shall be treated substantially the same as (and in any event no more favorably than) the Initial Term A Loans,
(vi) 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 any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;with the longest remaining Weighted Average Life to Maturity,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Credit Commitments,
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Credit Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront feesthe Collateral, and
(ix) as the applicable existing Class of Term Loans);
interest rate margins and (subject to clause (v) subject above) amortization schedule applicable to the above, any Incremental Term Loans shall be on terms and made pursuant to documentation to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders providing such or Incremental Term LoanLoan Lenders; provided thatthat in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower under any Incremental Term Loan Commitment is higher than the All-in Yield for the outstanding Initial Term A Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than (x) if such incurrence occurs during the Post-Closing Period, 0 basis points or (y) thereafter, 50 basis points, then the terms applicable to any effective interest rate margin for the Initial Term A Loans at the time such Incremental Term Loans are incurred shall be increased to the extent necessary so that the All-in Yield for the Initial Term A Loans is equal to the All-in Yield for such Incremental Term Loans minus (except as expressly permitted above and except for covenants x) if such incurrence occurs during the Post-Closing Period, 0 basis points or other provisions applicable (y) thereafter, 50 basis points. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement or Incremental Term Loan Amendment, this Agreement shall be amended to the extent (but only to periods after the then Latest Maturity Dateextent) are not, taken necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby as a whole, materially more restrictive provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.17 and any such Collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the Borrower and its Restricted Subsidiariesother parties hereto; provided, than the terms applicable that, notwithstanding anything to the then outstanding Commitments contrary in this Section 2.17, during the Post-Closing Period, to the extent such terms and Loansdocumentation are not consistent with the Initial Term A Facility or the Initial Revolving Facility, as reasonably determined by the Borrower case may be (except to the extent that this Agreement is amended permitted by clauses (which v) and (ix)), such terms (if favorable to the Lenders hereunder immediately prior to such incurrence) shall not require be, in consultation with the consent of any Lender) to incorporate such more restrictive provisions Administrative Agent, incorporated into the Loan Documents for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect all Lenders hereunder immediately prior to such Incremental Term Loan Commitment and incurrence without further amendment requirements. Each of 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 and the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the Borrowings outstanding applicable Class of such Class are held by the Lenders of such Class Term Loans on a pro rata basis basis, and (ii) all Revolving Loans in accordance with respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the respective amount applicable Class of Term outstanding Revolving Loans of such Class held by each Lenderon a pro rata basis. Notwithstanding anything to the contrary, this Section 2.17 shall supersede any provisions in Section 2.15 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Roku, Inc)
Incremental Commitments. (1a) The Borrower maymay at any time or from time to time after the Effective Date, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assigneesincreases in the amount of the Commitments (each such increase, a “Commitment Increase”), provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, (x) no Default shall exist and (y) all representations and warranties in each case, 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 2.19 shall not exceed $350,000,000. Each Commitment Increase shall be in an aggregate principal amount that is a Farm Credit Lender not less than $20,000,000 (whichprovided that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in the immediately preceding sentence). Each notice from the Borrower pursuant to this Section 2.19 shall set forth the requested amount of the relevant Commitment Increase. Commitment Increases may be provided, in each case, may include by any existing Lender or by any other bank or other financial institution (but no any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 9.04 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be required provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to participate an amendment (an “Incremental Amendment”) to this Agreement, executed by the Borrower, each Lender agreeing to provide such Commitment Increase, 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 as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.19. The effectiveness of any such Incremental Term Loan without its consent) and Amendment shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) satisfaction on the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms thereof of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries each of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses 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 2.19, (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 such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit (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 Section 5.02 such increase, there are satisfied whether any Loans outstanding, such Loans shall on or not a Credit Extension is made on such date (and, only prior 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings effectiveness of such Class are held Commitment Increase be prepaid from the proceeds of additional Loans made hereunder (reflecting such increase in Commitments), which prepayment shall be accompanied by accrued interest on the Lenders of such Class on a pro rata basis Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.14. The Administrative Agent and the respective amount of Term Loans of such Class held by each LenderLenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.19 shall supersede any provisions in Section 2.16 or 9.02 to the contrary.
Appears in 1 contract
Incremental Commitments. (1a) The At any time prior to the Latest Maturity Date, the Borrower maymay from time to time, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request that one or more Persons (which may include the then-existing Lenders; provided that no Lender shall be obligated to provide such Incremental Commitments and may elect or decline in its sole discretion to provide Incremental Commitments) establish one or more Incremental Revolving Credit Commitments and/or one or more Incremental Term Loan Commitments under this paragraph (a), it being understood that (x) if such Incremental Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld or delayed) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment. The minimum aggregate principal amount of any Incremental Commitment shall be $5,000,000 (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum, as of any date of determination, of (i) the greater of (x) $100,000,000 250,000,000 and (y) 75% of Consolidated EBITDA for the most recently ended Test Period for which financial statements are available (calculated on a Pro Forma Basis) as of such date, (ii) the aggregate principal amount of (x) voluntary prepayments of the Term Loans and any Incremental Equivalent Debt and purchases and repurchases of Term Loans made pursuant to Section 9.04(f) and (y) voluntary prepayments of any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Commitments with respect thereto, in each case under clauses (x) and (y), other than prepayments from proceeds of long-term Indebtedness and occurring on or prior to such date and (iii) an unlimited amount so long as on the date of incurrence of such Incremental Commitment, in the case of this clause (iii), the First Lien Net Leverage Ratio does not exceed 2.25 to 1.00 on a Pro Forma Basis (but without giving effect to any amount incurred substantially simultaneously or contemporaneously therewith under clause (i) or clause (ii) above) (in the case of any Incremental Revolving Credit Commitments, calculated assuming the full amount available thereunder is drawn) (with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute Indebtedness secured on a pari passu basis with the Initial Term B Facility for the purposes of calculating the First Lien Net Leverage Ratio even though not so secured); provided that (A) the cash and Permitted Investments constituting the proceeds received in respect of such Incremental Loans or Incremental Commitments shall not be included as Unrestricted Cash and Cash Equivalents for purposes of determining the First Lien Net Leverage Ratio pursuant to this clause (iii), (B) the Borrower shall be deemed to have utilized the amounts under clause (ii) prior to using the amounts under clause (i) or (iii) and the Borrower shall be deemed to have utilized the amounts under clause (iii) (to the extent compliant therewith) prior to utilization of the amounts under clause (i), and (C) if any Indebtedness is intended to be incurred under clause (iii) and clause (i) or clause (ii) in a single transaction or series of related transactions, (a) the incurrence of the portion of such Indebtedness to be incurred or implemented under clause (iii) shall be calculated first without giving effect to any Indebtedness to be incurred under clause (i) or clause (ii), but giving full pro forma effect to the use of proceeds of the entire amount of such Indebtedness and (b) the incurrence of the portion of such Indebtedness to be incurred or implemented under clause (i) and/or clause (ii) shall be calculated thereafter. The Borrower may arrange for one or more Eligible AssigneesPersons, in each case, that is a Farm Credit Lender (which, in each case, which may include any existing Lender (but no such Lender shall be required Lenders, to participate in any such extend Incremental Revolving Credit Commitments, provide Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Commitments or increase their applicable existing Term Loans or Revolving Credit Commitments in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) an aggregate amount equal to the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount Commitment. In the event that one or more of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans Persons offer to be borrowed pursuant to enter into such Incremental Term Loan Commitments are or Incremental Revolving Credit Commitments, as applicable, and such Persons, the Loan Parties, the Borrower and the Administrative Agent agree as to be an increase in any existing Class the amount of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested or Incremental Revolving Credit Commitments, as applicable, to become effective be allocated to the respective Persons making such offers and the fees (which shallif any) to be payable by the Borrower in connection therewith, unless otherwise agreed such Persons and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. Each 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 opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loan Commitments shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Financial Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied and (ii) the Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be not less than ten Business Days after deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such notice is delivered).
Limited Condition Acquisition Agreement, (2) The Loan Partiesas of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, and (3) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment. Nothing contained in this Section 2.17 shall constitute, or otherwise be deemed to be, a commitment on the part of any other Person whose consent is required as provided above Lender to provide or increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) The Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Incremental Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Credit Commitments; provided that:
(i) the any commitments to make Incremental Term Loans in the form of additional Initial Term B Loans shall not be guaranteed by any Subsidiaries have the same terms as the Initial Term B Loans, and shall form part of the Borrower that do not guarantee the existing same Class of Initial Term B Loans and any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term B Loans (“Other Incremental Term Loans”) shall be secured on a pari passu basis by the same Collateral subject to compliance with clauses (and no additional collateralii) securing the then existing Obligations;through (vi) below,
(ii) (A) the Maturity Date of any Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.17 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(iii) the final maturity date of any such Other Incremental Term Loans (other than any bridge financing converting to, or intended to be refinanced by, Indebtedness that complies with the maturity date requirement in this clause (iii)) shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (Bwhich 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 terms, to the extent not consistent with the Initial Term B Loans, shall not be more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than any bridge financing converting to, or intended to be refinanced by, Indebtedness that complies with the Weighted Average Life to Maturity requirement in this clause (iv)) shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;with the longest remaining Weighted Average Life to Maturity,
(ivv) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Credit Commitments,
(except that any vi) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Credit Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront fees) as the applicable existing Class of Term Loans);Collateral, and
(vvii) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the above, any Incremental Term Loans shall be on terms and made pursuant to documentation to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders providing such or Incremental Term LoanLoan Lenders; provided thatthat in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower prior to that date that is twelve (12) months after the Amendment No. 1 Effective Date is higher than the All-in Yield for the outstanding Initial Term B Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the terms applicable to any effective interest rate margin for the Initial Term B Loans at the time such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except incurred shall be increased to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions All-in Yield for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Initial Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 B Loans is made on such date (and, only equal 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 All-in Yield for such Incremental Term Loans minus 50 basis points. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incurrence Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of Indebtedness thereunder (assuming that this Section 2.17 and any such commitments are fully drawn on such date) Collateral and use of proceeds therefrom, the Borrower would other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in compliance with Section 8.11 and (z) writing by the Administrative Agent shall have received documents and/or the Collateral Agent with the Borrower’s consent (not to be unreasonably withheld) and legal opinions as furnished to such matters as are reasonably requested by the other parties hereto. Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the Borrowings outstanding applicable Class of such Class are held by the Lenders of such Class Term Loans on a pro rata basis basis, and (ii) all Revolving Loans in accordance with respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the respective amount applicable Class of Term outstanding Revolving Loans of such Class held by each Lenderon a pro rata basis. Notwithstanding anything to the contrary, this Section 2.17 shall supersede any provisions in Section 2.15 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Adeia Inc.)
Incremental Commitments. (1a) The Borrower mayAbitibiBowater shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.14) or the Lenders, to request at any time and from time to time after the Effective Date and prior to the Revolving Loan Maturity Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide U.S. Facility Incremental Commitments or Canadian Facility Incremental Commitments (as specified by written notice AbitibiBowater) and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment, 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 from time Agent, AbitibiBowater and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to timefund any Revolving Loans in excess of its U.S. Facility Commitment or Canadian Facility Commitment, request Incremental Term Loan Commitments not to exceed $100,000,000 from one as applicable, (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its U.S. Facility RL Percentage or Canadian Facility RL Percentage, as applicable, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14, (ii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of the Administrative Agent or any other Lender; provided that any Person that is not a Farm Credit Lender prior to the effectiveness of its Incremental Commitment shall require the consent of the Administrative Agent, each Issuing Lender and the Swingline Lender (which, in each case, may include any existing Lender (but no such Lender which consents shall not be required to participate in any such Incremental Term Loan without its consentunreasonably withheld or delayed) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such an Incremental Term Loans in their sole discretion Commitment pursuant to this Section 2.14, (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iiii) the aggregate amount of the each request (and provision therefor) for U.S. Facility Incremental Term Loan Commitments being requested (which or Canadian Facility Incremental Commitments, or any combination thereof, shall be in a minimum aggregate amount for all Lenders which provide such Incremental Commitments pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.14 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, 25,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Commitments permitted to be provided pursuant to this Section 2.14 shall not exceed in the aggregate $100,000,000, (v) if the Applicable Commitment Fee Percentage and/or Applicable Margins with respect to Commitments to be provided or Loans to be borrowed incurred pursuant to an Incremental Commitment shall be higher in any respect than those applicable to any other Commitments or Loans, the Applicable Commitment Fee Percentage and/or Applicable Margins, as the case may be, for the other Commitments and Loans shall be automatically increased as and to the extent needed to eliminate any deficiencies in accordance with the definition of “Applicable Commitment Fee Percentage” or “Applicable Margin” contained herein (such increase, the “Additional Commitment Fee” or “Additional Margin”, as the case may be), (vi) each Incremental Commitment Agreement shall specifically designate whether such Incremental Term Loan Commitments are U.S. Facility Incremental Commitments or Canadian Facility Incremental Commitments, (vii) all Revolving Loans of a Borrower incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Loan Documents and shall be secured by the relevant Security Documents, and guaranteed under the Guarantee and Collateral Agreement and/or Canadian Guarantee and Collateral Agreement, on a pari passu basis with all other Loans of such Borrower secured by each relevant Security Document and guaranteed under the Guarantee and Collateral Agreement and/or Canadian Guarantee and Collateral Agreement, and (ix) each Lender (including any Person which is an increase Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in any existing Class this Agreement, participate in Swingline Loans and Letters of Term Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a), in each case, under the U.S. Facility Commitment or Canadian Facility Commitment, as applicable, and such Revolving Loans shall constitute U.S. Facility Revolving Loans or a new Class Canadian Facility Revolving Loans, as the case may be, for all purposes of Term Loans this Agreement and (iii) the date on which such Incremental Term other applicable Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)Documents.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.14, (I) AbitibiBowater, each other Borrower, each Guarantor, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to AbitibiBowater and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the 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 (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.14 shall have been satisfied and (iv) all other Person whose consent is required conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied) and (II) AbitibiBowater, each other Borrower, each Guarantor, the Collateral Agent and each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and the Collateral Agent such other documentation additional Security Documents and/or amendments to the Security Documents as the Administrative Agent shall may reasonably specify request which are necessary to evidence ensure that all Loans incurred pursuant to the Incremental Term Commitments and any Additional Commitment Fee and/or Additional Margin are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the U.S. Facility Commitment and/or the Canadian Facility Commitment, as the case may be, and each Incremental Lender shall constitute a U.S. Facility Lender and/or Canadian Facility Lender, as applicable, for all purposes of this Agreement and each other applicable Loan Commitment. Each Additional Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.14, each Borrower shall, in coordination with the terms Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing U.S. Facility Lenders and/or Canadian Lenders); and
, as applicable, participate in each outstanding Borrowing of each Facility of Revolving Loans pro rata on the basis of their respective Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateTotal Commitment pursuant to this Section 2.14) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the Borrowers being obligated to pay to the respective amount Lenders any costs of Term Loans of the type referred to in Section 2.11 in connection with any such Class held by each Lenderrepayment and/or Borrowing.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower maySo long as no Default or Event of Default then exists or would result therefrom, by written notice to the Borrowers shall have the right, in 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 or the Administrative Agent, to request at any time and from time to timetime after the Restatement Effective Date and prior to the Final Maturity Date, request Incremental Term Loan Commitments not to exceed $100,000,000 from that one or more Lenders (and/or one or more other Persons which are Eligible AssigneesTransferees and which will become Lenders as provided below) provide Incremental Commitments under a Tranche and, subject to the applicable terms and conditions contained in each casethis Agreement, make Revolving Loans and participate in Swingline Loans and Letters of Credit pursuant thereto, it being understood and agreed, however, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but i) no such Lender shall be required obligated to participate in provide an Incremental Commitment as a result of any such Incremental Term Loan without its consent) request by the Borrowers, and shall be subject to until such consentstime, if any, as would 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 2.15, such Lender shall not be required obligated to fund any Revolving Loans or participate in connection with an assignment Swingline Loans or Letters of a Term Loan Credit in excess of its Commitment under any Tranche as in effect prior to giving effect to such PersonIncremental Commitment provided pursuant to this Section 2.15, (ii) willing any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which this Section 2.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of $10,000,000 all Incremental Commitments provided pursuant to this Section 2.15, shall not exceed the Maximum Incremental Commitment Amount and minimum increments of $10,000,000(v) all Revolving Loans (and all interest, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agentfees and other amounts payable thereon), (ii) whether the Incremental Term Loans to be borrowed made pursuant to such an Incremental Term Loan Commitments are Commitment shall be entitled to be an increase in any existing Class the benefits of Term Loans or the guarantees and security provided under the Credit Documents to the other ABL Obligations under the relevant Tranche on a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)pari passu basis.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.15, each Borrower under the relevant Tranche, the Administrative Agent and any each such Lender or other Person whose consent is required as provided above Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Commitment Agreement, with the effectiveness of such other documentation as Incremental Lender’s Incremental Commitment to occur on the Administrative Agent shall reasonably specify to evidence the date set forth in such Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by Commitment Agreement, which date in any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans event shall be no earlier than the then Latest Maturity Date date on which (w) 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 up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.15 shall have been satisfied, and (Bz) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Weighted Average Life to Maturity of any Incremental Term Loans Total Commitment (and the Total U.S./European Commitment and/or Total Canadian Commitment, as applicable) under, and for all purposes of, this Agreement shall be no shorter than increased by the remaining Weighted Average Life aggregate amount of such Incremental Commitments, (ii) if the Total U.S./European Commitment is then being increased and the relevant Incremental Commitment Agreement so provides, the Total European Sub-Commitment shall be increased by the amount specified in such Incremental Commitment Agreement (not to Maturity exceed the amount of any then outstanding Class of Term Loans;
the related Incremental Commitment); (iii) no Schedule I-A shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) to the extent requested by any Incremental Term Lender, Revolving Loan shall participate on Notes will be issued, at the expense of each applicable Borrower, to such Incremental Lender in conformity with the requirements of Section 2.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 2.15, the Borrowers under the relevant Tranche or Tranches shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), even though as a greater result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period than pro rata basis with the then outstanding Term Loans Borrowings of such Loans, in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between each case to the extent necessary so that all of the Lenders providing under the applicable Incremental Term Loan relevant Tranche or Tranches participate in each outstanding Borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Commitment (and the Total U.S./European Commitment and/or Total Canadian Commitment, as applicable) pursuant to this Section 2.15) and with each affected Borrower (except that any Incremental Term Loans forming an addition under the relevant Tranche being obligated 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 existing Class of Term Loans);
(v) subject pay to the above, respective Lenders any Incremental Term Loans shall be on terms costs of the type referred to in Section 2.11 and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loansamounts, as reasonably determined by the Borrower respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (except rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the extent that this Agreement is amended (which shall not require preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. Without limiting the consent of any Lender) to incorporate such more restrictive provisions for the benefit obligations of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective Borrowers under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 (and2.15(c), 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as the Lenders agree that they will use their commercially reasonable efforts to such matters as are reasonably requested by attempt to minimize the Administrative Agent. Upon any increase costs of the type referred to in Section 2.11 that the Borrowers would otherwise incur in connection with the implementation of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderIncremental Commitments.
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Incremental Commitments. (1a) The Borrower may, from time to time in connection with the financing of a Permitted Acquisition (which shall include all related fees and expenses thereof), by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments in an amount not to exceed $100,000,000 the Incremental Loan Amount from one or more Eligible AssigneesIncremental Lenders, in each case, that is a Farm Credit Lender (which, in each case, which may include any existing Lender; provided that each Incremental Lender, if not already a Lender (but no such or an Affiliate of a Lender shall be required to participate in any such Incremental Term Loan without its consent) and hereunder, shall be subject to such consents, if any, as would the approval of the Administrative Agent (which approval shall not be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of US$5,000,000 and a minimum amount of $US$10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Loan Amount), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, shall not be not less than ten 10 Business Days nor more than 60 calendar days after the date of such notice is deliverednotice), (iii) whether such Incremental Commitments are to be Commitments or commitments to make term loans with terms different from the Loans ("Other Loans") and (iv) a description in detail reasonably satisfactory to the Administrative Agent of the related Permitted Acquisition.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Loan Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans to be made thereunder; provided that:
, without the prior written consent of the Required Lenders, (i) the initial yield in respect of any Incremental Term Loans (as conclusively determined by the Administrative Agent at the time of the execution and delivery of an Incremental Loan Assumption Agreement) shall not be guaranteed exceed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu more than 25 basis by the same Collateral (and no additional collateral) securing points the then existing Obligations;
current yield on the Loans, (ii) (A) the Maturity Date final maturity date of any Incremental Term Other Loans shall be no earlier than the then Latest Maturity Date and (Biii) the Weighted Average Life average life to Maturity maturity of any Incremental Term Other Loans shall be no shorter than the remaining Weighted Average Life average life to Maturity maturity of the Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest ratesAssumption Agreement, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except deemed amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing Lenders); andIncremental Commitment evidenced thereby. 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.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.22 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses paragraphs (ab) and (bc) of Section 5.02 are Article IV shall be satisfied whether or not and the Administrative Agent shall have received a Credit Extension is made on certificate to that effect dated such date (and, only to the extent and executed by 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 and the incurrence Financial Officer of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents (with sufficient copies for each of the Incremental Lenders) closing certificates and legal opinions as to such matters as are documentation reasonably requested specified by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 1 contract
Sources: Credit Agreement (Burns Philp Netherlands European Holdings Bv)
Incremental Commitments. (1a) The Borrower mayHoldings shall have the right, by written notice in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.14) or the Lenders, to request at any time and from time to time after the Effective Date (or, if later, after the satisfaction of any condition previously agreed to among the Agents and Holdings) and prior to the Revolving Loan Maturity Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment, 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 from time Agent, Holdings and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to time, request Incremental Term Loan Commitments not to exceed $100,000,000 from one fund any Revolving Loans in excess of its Commitment (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its RL Percentage, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14, (ii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of the Administrative Agent or any other Lender; provided that any Person that is not a Farm Credit Lender prior to the effectiveness of its Incremental Commitment shall require the consent of the Administrative Agent, each Issuing Lender, the Swingline Lender and the Fronting Lender (which, in each case, may include any existing Lender unless such Person will not be a Participating Specified Foreign Currency Lender) (but no such Lender which consents shall not be required to participate in any such Incremental Term Loan without its consentunreasonably withheld) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such an Incremental Term Loans in their sole discretion Commitment pursuant to this Section 2.14, (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.14 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Commitments permitted to be provided pursuant to this Section 2.14 shall not exceed in the aggregate $50,000,000, (v) Holdings shall not increase the Commitment pursuant to this Section 2.14 more than 3 times, (vi) if the Applicable Margins with respect to Loans to be borrowed incurred pursuant to such an Incremental Term Loan Commitments are to Commitment shall be an increase higher in any existing Class of Term Loans or a new Class of Term respect than those applicable to any other Loans, the Applicable Margins, as the case may be, for the other Loans and extension of credit hereunder shall be automatically increased as and to the extent needed to eliminate any deficiencies in accordance with the definition of “Applicable Margin” contained herein (iiisuch increase, the “Additional Margin”), (vii) all Revolving Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under the relevant Guaranties, on a pari passu basis will all other Loans secured by each relevant Security Document and guaranteed under each relevant Guaranty, and (viii) each Lender (including any Person which such is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitments are requested Commitment pursuant to become effective (which an Incremental Commitment Agreement shall, unless otherwise agreed by subject to the Administrative Agentsatisfaction of the relevant conditions set forth in this Agreement, be not less than ten Business Days after participate in Swingline Loans and Letters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the date such notice is delivered)other applicable Credit Documents.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.14, (I) Holdings, each other Borrower, each Guarantor, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to Holdings and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the 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 (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.14 shall have been satisfied and (iv) all other Person whose consent is required conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied) and (II) Holdings, each other Borrower, each Guarantor and the Collateral Agent and each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an and the Collateral Agent such additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments and any Additional Credit Extension Amendment and such other documentation as Margin are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Term Loan Commitment. Each Additional Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Total Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.14, each Borrower shall, in coordination with the terms Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing Lenders); and
Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateTotal Commitment pursuant to this Section 2.14) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the Borrowers being obligated to pay to the respective amount Lenders any costs of Term Loans of the type referred to in Section 2.11 in connection with any such Class held by each Lenderrepayment and/or Borrowing.
Appears in 1 contract
Incremental Commitments. (1) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or increases in the Revolving Commitments of any Class or the establishment of a new Class of Extended Revolving Commitments, as applicable, in an aggregate amount for any such incurrence (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 $100,000,000 600,000,000the then remaining Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Assignees (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan or additional Revolving Commitment without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan or Revolving Commitment, as applicable, to such Person) willing to provide such Incremental Term Loans and/or additional Revolving Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or additional Revolving Commitments being requested (which shall be in a minimum amount of $10,000,000 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), (ii) (x) in the case of Incremental Term Loan 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 a new Class of Term 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 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 CommitmentCommitment or additional Revolving Commitments. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term LoansLoans and/or additional Revolving Commitments; provided that:
(i) any additional Revolving Commitments shall have the same terms as 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 shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (Aiii) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (Bb) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iiiiv) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(ivv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(vvi) subject to the above, any Incremental Term Loans and Extended Revolving Commitments shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans or Extended Revolving Commitments (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vivii) subject to Section 1.061.10, no Incremental Term Loan Commitment or additional Revolving Commitment shall become effective under this Section 2.01(b2.01(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, 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 incurrence of Indebtedness thereunder (assuming assuming, in the case of Incremental Term Loan Commitments, that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziv) 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, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Revolving Commitments or Term Loans of such Class held by each Lender.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower mayCompany shall have the right, by written notice in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of the Administrative Agent or the Lenders (except, in either case, as otherwise provided in this Section 2.14), to request at any time and from time to time after the Effective Date and prior to the Final Maturity Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment, 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 from time Agent, the Company and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to time, request Incremental Term fund any Revolving Loans in excess of its Revolving Loan Commitments not to exceed $100,000,000 from one Commitment (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its RL Percentage, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14 (it being understood and agreed that is any Lender that does not agree to provide any such Incremental Commitment within ten Business Days after a Farm Credit Lender request therefor (which, in each case, or such shorter period as may include any existing Lender (but no such Lender shall be required to participate provided in any such request for Incremental Term Loan without its consentCommitments) and shall be subject deemed to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing have declined to provide any such Incremental Term Loans Commitment except to the extent such Lender thereafter executes and delivers an Incremental Commitment Agreement in their sole discretion accordance with the terms hereof), (such Lendersii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender; provided that any Lender (or Person who is an Eligible Transferee who will become a Lender) providing Incremental Commitments shall require the consent of the Administrative Agent, each Issuing Lender and the “Incremental Term Loan Lenders”Swingline Lender (which consents shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth , (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.14 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, 50,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Commitments permitted to be provided pursuant to this Section 2.14 shall not exceed in the aggregate $250,000,000, (v) all Revolving Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under the relevant Guaranties, on a pari passu basis with all other Loans (and related Obligations) secured by each relevant Security Document and guaranteed under each relevant Guaranty, and (vi) each Lender (including any Person which is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.14, (I) the Company, each other Borrower, each Subsidiary Guarantor, the Administrative Agent, the Swingline Lender and each Issuing Lender (if the consent of the Swingline Lender and each Issuing Lender is required pursuant to Section 2.14(a)(ii)) and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Borrowers and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the Incremental Term Loans Commitment provided therein to be borrowed pursuant to occur on the date set forth in such Incremental Term Loan Commitments are to be an increase Commitment Agreement, which date in any existing Class of Term Loans or a new Class of Term Loans and (iii) event shall be no earlier than the date on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.14 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Term Loan Commitments are requested to become effective Commitment Agreement shall have been satisfied) and (which shallII) the Company, unless otherwise agreed by the Administrative Agenteach other Borrower, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Partieseach Subsidiary Guarantor, the Administrative Collateral Agent and any other Person whose consent is required each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and the Collateral Agent such other documentation as additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Term Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment. Each Additional Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.14, each Borrower shall, in coordination with the terms Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing Lenders); and
Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 2.14) and with the Borrowers being obligated to pay to the respective Lenders any costs of the type referred to in Section 2.11 in connection with any such repayment and/or Borrowing.
(e) At the time of any provision of Incremental Term Loans Commitments pursuant to this Section 2.14, all dollar thresholds included in any determination made with respect to Excess Availability and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective dollar amount of Term Loans of such Class held the Liquidity Threshold shall be increased automatically in an amount equal to the percentage by each Lenderwhich the Incremental Commitments increase the Total Revolving Loan Commitment.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld). 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 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective 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 shallshall together with any then outstanding Initial Term B Loans form a single Class of) Initial Term B Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredInitial Term B Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x) commitments to make additional Initial Term B Loans shall have the same terms as the Initial Term B Loans, and shall form part of the same Class of Initial Term B Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then (and theretofore) outstanding, the Revolving Facility Commitments with the then latest 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 B Loans or, at the option of the Lux 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 a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralv) securing the then existing Obligations;below),
(ii) (Aiii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich 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) the same terms as the Initial Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(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 any then outstanding Class of the Term Loans;Loans with the Latest Maturity Date,
(iiiv) no with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrowers, except that the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Initial Term B 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 “LIBOR floor” as provided in the following proviso) applicable to such Initial 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 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 Initial Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Initial Term B 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 with basis) than the then outstanding Initial Term B Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrowers) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments, and
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Facility Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Parent or its Subsidiaries other than upfront fees) as the applicable existing Class Collateral. Each party hereto hereby agrees that, upon the effectiveness of Term Loans);
(v) subject to the above, any Incremental Term Loans Assumption Agreement, this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that (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 amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided that, in the event that any tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Business Acquisition (provided that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving pro forma effect to such tranche of Incremental Term Loan Commitment Loans); (ii) the representations and warranties of the Parent and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions Borrowers set forth in clauses this Agreement shall be true and correct in all material respects (aother 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 Permitted Business 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 customary “specified representations” and those representations of the seller or the target company (bas applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, 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 Borrowing is made on result of a breach of such date, clause (c) is required to be complied with)representations; (yiii) on a Pro Forma BasisBasis as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent pursuant to Section 5.04(a) or (b) (or, giving effect if prior thereto, pursuant to Section 4.02(h)) as if (x) in the case of any Incremental Term Loans, such Incremental Term Loans and had been outstanding on the incurrence last day of Indebtedness thereunder such fiscal quarter of the Parent for testing compliance therewith or (assuming that y) in the case of any Incremental Revolving Facility Commitments, all Revolving Facility Loans available to the Borrowers, including any such commitments are fully drawn Incremental Revolving Facility Commitment, had been outstanding on the last day of such date) and use fiscal quarter of proceeds therefromthe Parent for testing compliance therewith, the Borrower would Parent shall be in compliance with the Financial Covenant (if then in effect) (at any time prior to the first test date pursuant to said Section 8.11 6.12, as if the initially applicable covenant levels were then in effect); and (ziv) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the Borrowings outstanding applicable Class of such Class are held by the Lenders of such Class Term Loans on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.basis, and
Appears in 1 contract
Sources: Credit Agreement (Mallinckrodt PLC)
Incremental Commitments. Kimco may from time to time request new term loan commitments to be established (1) The Borrower maythe “Incremental Commitments”), by written notice in minimum increments of $10,000,000 (or whole multiples of $5,000,000 in excess of $10,000,000), provided that the total combined amount of the Incremental Commitments under this Section 10.8 shall be limited to $750,000,000 in the aggregate. Any Lender, any lender under the Revolving Credit Facility, or, with the consent of the Administrative Agent from time to time, request Incremental Term Loan Commitments (such consent not to exceed $100,000,000 from one be unreasonably withheld or more Eligible Assigneesdelayed) and Kimco, in each caseany other additional bank, financial institution or other entity that is not then a Farm Credit Lender (which, in each case, may include any existing elect to become a Lender (but no such hereunder and make an Incremental Commitment. No Lender shall be required have any obligation to participate in make any such Incremental Term Loan without its consentCommitment, nor shall the Administrative Agent, the Joint Lead Arrangers or the Syndication Agents have any obligation to locate banks, financial institutions or other entities willing to make any Incremental Commitment. If (x) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) existing or new Lenders are willing to provide such Incremental Term Loans in their sole discretion Commitments, term loans may be made hereunder (such Lenders, the “Incremental New Term Loan LendersLoans”) by such Lenders (each, a “New Term Lender”). Such notice shall set forth Each Incremental Commitment under this Section 10.8 is subject to the following conditions:
(ia) the amount Each of the Incremental Term representations and warranties made by Kimco in or pursuant to the Loan Commitments being requested (which Documents shall be true and correct in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount all material respects (or, in each casethe case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, such lesser amount approved by true and correct (after giving effect to any qualification therein) in all respects) on and as of the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to effective date of such Incremental Term Loan Commitments are Commitment as if made on and as of such date except for representations and warranties expressly stated to be an increase relate to a specific earlier date, in any existing Class which case such representations and warranties were true and correct in all material respects as of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loansearlier date; provided that:and
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no No Default or Event of Default shall exist have occurred and be continuing on the effective date of such Incremental Commitment or after giving effect thereto and (ii) Kimco would be in compliance with each financial covenant set forth in paragraphs (a) through (f) of Section 7.1 if the ratio or amount referred to therein were to be calculated as of the most recent Test Period as to which a compliance certificate has been delivered pursuant to Section 6.2(b) after giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder Indebtedness, if any, under such Incremental Commitments, on the effective date of such Incremental Commitments, and the use of proceeds therefrom; thereof. Each request for an Incremental Commitment under this Section 10.8 shall constitute a representation and warranty by Kimco as of the date of such Incremental Commitment that the conditions contained in this Section 10.8 have been satisfied, and shall be accompanied by a certificate of a Responsible Officer of Kimco to such effect. Any Incremental Commitments hereunder shall be evidenced by the execution and delivery of an amendment to this Agreement by the Borrower, the Administrative Agent and the New Term Lenders providing such Incremental Commitments, a copy of which shall be forwarded to each Lender by the Administrative Agent promptly after execution thereof. Each such amendment executed in connection with an Incremental Commitment hereunder 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 good faith judgment of Administrative Agent, to effect the provisions of this Section 10.8 and the Incremental Commitments, subject to approval by the Borrower and the New Term Lenders, as applicable, including without limitation to (x) include the conditions set forth in clauses New Term Lenders as “Lenders” hereunder, (y) to include the New Term Loans as “Loans” hereunder, and (z) to include the New Term Lenders and their New Term Loans for purposes of the definition of “Required Lenders”. All such amendments and joinder agreements entered into with the Borrower by the Administrative Agent and the New Term Lenders shall be binding and conclusive on all Lenders. On the effective date of any New Term Commitments, (a) each New Term Lender shall make a New Term Loan to the Borrowers in an amount equal to its New Term Commitment, and (b) of Section 5.02 are satisfied whether or not each New Term Lender shall become a Credit Extension is Lender hereunder with respect to the New Term Commitments and the New Term Loans made pursuant thereto. Any New Term Loans made on such effective date (and, only to shall be have the extent a Borrowing is same terms as the Loans made on such datethe Effective Date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance rank pari passu with the respective amount Loans made on the Effective Date, and shall form a part of Term the same series as the Loans of such Class held by each Lendermade on the Effective Date.
Appears in 1 contract
Sources: Loan Agreement (Kimco Realty Corp)
Incremental Commitments. (1a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld). 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 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective 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 shallshall together with any then outstanding 2017 Term B Loans form a single Class of) 2017 Term B Loans or (y, unless otherwise agreed by (y) commitments to make term loans with terms identical to (and which shall together with any then outstanding 2018 Incremental Term Loans form a single Class of) 2018 Incremental Term Loans or (z) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative Agent, be not less than ten Business Days after 2017 Term B Loans and the date such notice is delivered2018 Incremental Term Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x) commitments to make additional 2017 Term B Loans shall have the same terms as the 2017 Term B Loans, and shall form part of the same Class of 2017 Term B Loans and (y, (y) commitments to make additional 2018 Incremental Term Loans shall not be guaranteed by any Subsidiaries have the same terms as the 2018 Incremental Term Loans, and shall form part of the Borrower that do not guarantee the existing same Class of 2018 Incremental Term Loans and (z) Incremental Revolving Facility Commitments shall be secured on a pari passu basis by have the same Collateral terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then (and no additional collateraltheretofore) securing outstanding, the Revolving Facility Commitments with the then existing Obligations;latest Revolving Facility Maturity Date),
(ii) the Other Incremental Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank equally and ratably in right of security with the 2017 Term B Loans and the 2018 Incremental Term Loans or, at the option of the Lux Borrower, shall rank junior in right of security with the 2017 Term B Loans and the 2018 Incremental Term Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the 2017 Term B Loans and the 2018 Incremental Term Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (v) below),
(iii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich 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) the same terms as the 2017 Term B Loans and the 2018 Incremental Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(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 any then outstanding Class of the Term Loans;Loans with the Latest Maturity Date,
(iiiv) no with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrowers, except that the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the 2017 Term B Loans or the 2018 Incremental 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 “LIBOR floor” as provided in the following proviso) applicable to such 2017 Term B Loans or such 2018 Incremental Term Loans, as the case may be, shall be increased such that after giving effect to such increase, the Term Yield Differential with respect to such 2017 Term B Loans or such 2018 Incremental Term Loans, as the case may be, shall not 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 2017 Term B Loans or 2018 Incremental Term Loans, as the case may be, shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such 2017 Term B Loans or such 2018 Incremental Term Loans, as may be the case,
(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 with basis) than the then outstanding 2017 Term B Loans and the 2018 Incremental Term Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrowers) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments, and
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Facility Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Parent or its Subsidiaries other than upfront fees) as the applicable existing Class Collateral. Each party hereto hereby agrees that, upon the effectiveness of Term Loans);
(v) subject to the above, any Incremental Term Loans Assumption Agreement, this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that (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 amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided that, in the event that any tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Business Acquisition (provided that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving pro forma effect to such tranche of Incremental Term Loan Commitment Loans); (ii) the representations and warranties of the Parent and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions Borrowers set forth in clauses this Agreement shall be true and correct in all material respects (aother 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 Permitted Business 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 customary “specified representations” and those representations of the seller or the target company (bas applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, 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 Borrowing is made on result of a breach of such date, clause (c) is required to be complied with)representations; (yiii) on a Pro Forma BasisBasis as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent pursuant to Section 5.04(a) or (b) (or, giving effect if prior thereto, pursuant to Section 4.02(h)) as if (x) in the case of any Incremental Term Loans, such Incremental Term Loans and had been outstanding on the incurrence last day of Indebtedness thereunder such fiscal quarter of the Parent for testing compliance therewith or (assuming that y) in the case of any Incremental Revolving Facility Commitments, all Revolving Facility Loans available to the Borrowers, including any such commitments are fully drawn Incremental Revolving Facility Commitment, had been outstanding on the last day of such date) and use fiscal quarter of proceeds therefromthe Parent for testing compliance therewith, the Borrower would Parent shall be in compliance with the Financial Covenant (if then in effect) (at any time prior to the first test date pursuant to said Section 8.11 6.12, as if the initially applicable covenant levels were then in effect); and (ziv) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall 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 Incremental Term Loans), 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, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Sources: Incremental Assumption Agreement (Mallinckrodt PLC)
Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Banks (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 requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective 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 shallshall 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, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentInitial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be not less than ten Business Days after in the date sole discretion of such notice is delivered)Lender.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x) commitments to make additional Initial Term Loans shall have the same terms as the Initial Term Loans, and shall form part of the same Class of Initial Term Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding 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 latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving 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 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 and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall subject to clause (v) below) or be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;unsecured,
(ii) (Aiii) the Maturity Date final maturity date of any such Other Incremental Term Loans (other than any Permitted Incremental Term A Loans) shall be no earlier than the then Latest Initial Term Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich 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 same terms as the Initial Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than any Permitted Incremental Term A Loans) shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Initial Term Loans;Facility,
(iiiv) no with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrowers, except that with respect to any Other Incremental Term Loan secured by Liens on the Collateral that are pari passu with the Liens thereon securing the Initial Term Loans (other than any Permitted Incremental Term A Loans), the All-in Yield in respect of any such Other Incremental Term Loan 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 “LIBOR floor” as provided in the following proviso) applicable to such Initial Term 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 “LIBOR floor” being applicable to such Other Incremental 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 Initial Term Loans shall be increased to an amount not to exceed the “LIBOR 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 with basis) than the then outstanding Initial Term Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments, and
(except that any viii) Other Incremental Term Loans forming an addition and Incremental Revolving Facility Commitments shall not be secured by any asset of the Borrower or its Subsidiaries other than then Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to an existing Class 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, for the avoidance of doubt, to (x) provide that the Lenders providing any Permitted Incremental Term A Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Financial Covenant and be included in the “Required Financial Covenant Lenders); and” and (y) make appropriate changes to Sections 6.11, 7.01 and 9.08 with respect to the control of remedies in the event of a default in respect of the Financial Covenant. 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 “Loan Documents” hereunder and 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.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist giving pro forma effect to such (subject, in the case of any tranche of Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromLoans that is used to finance a Limited Condition Transaction, to Section 1.07); (xii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother 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 Transaction 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 in the case of any Limited Condition Acquisition, those representations of the seller or the target company (bas applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, 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 Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall 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 Incremental Term Loans), 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, 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 apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Incremental Commitments. (1a) The So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower mayshall have the right, with the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) and in coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.23, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Closing Date, that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders as provided below) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and in the respective Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swing Line Loans pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by written notice 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 from time an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.23, such Lender shall not be obligated to timefund any Revolving Loans in excess of its Commitment or participate in any Letters of Credit or Swing Line Loans in excess of its Pro Rata Share, request in each case as in effect prior to giving effect to such Incremental Term Loan Commitment provided pursuant to this Section 2.23, (ii) any Lender (including any Eligible Assignee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 2.23 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Assignee who will become a lender)) of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 2.23 shall not exceed the Maximum Incremental Commitment Amount, (v) if the Applicable Commitment Fee Percentage and/or Applicable Margins with respect to exceed $100,000,000 from one Commitments to be provided or more Revolving Loans to be incurred pursuant to an Incremental Commitment shall be higher in any respect than those applicable to any other Commitments or Revolving Loans, the Applicable Commitment Fee Percentage and/or Applicable Margins, as the case may be, for the other Commitments and Revolving Loans and extensions of credit hereunder shall be automatically increased as and to the extent needed to eliminate any deficiencies in accordance with the definition of “Applicable Commitment Fee Percentage” or “Applicable Margin” contained herein (such increase, the “Additional Commitment Fee” or “Additional Margin”, as the case may be), (vi) all Revolving Loans thereunder (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement, and guaranteed under the Guaranty, on a pari passu basis with all other Obligations secured by the Pledge and Security Agreement and guaranteed under the Guaranty, and (vii) each Lender (including any Eligible AssigneesAssignee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall be reasonably satisfactory to the Administrative Agent, each Issuing Bank and the Swing Line Lender and shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swing Line Loans and Letters of Credit pursuant to Sections 2.2(b)(vi) and 2.3(e), respectively, and make Revolving Loans as provided in Section 2.1(a), in each case, that is a Farm under the Total Commitment, and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the other applicable Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)Document.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.23, (I) the Borrower, each Guarantor Subsidiary, the Administrative Agent and any each such Lender or other Person whose consent is required as provided above Eligible Assignee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Commitment Agreement, with the effectiveness of such other documentation as Incremental Lender’s Incremental Commitment to occur on the Administrative Agent shall reasonably specify to evidence the date set forth in such Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by Commitment Agreement, which date in any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans event shall be no earlier than the then Latest Maturity Date and date on which (Bw) all fees required to be paid in connection therewith at the Weighted Average Life to Maturity time of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans such effectiveness shall have such interest rates, optional prepayment provisions and been paid (including any up-front or arrangement fees as may 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 existing Class of Term Loans);
(v) subject owing to the above, Administrative Agent (or any Incremental Term Loans shall be on terms and pursuant to documentation to be determined affiliate thereof) agreed upon by the Borrower and the Lenders providing such Incremental Term Loan; provided thatin writing), the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in clauses (a) and (b) of this Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and2.23 shall have been satisfied, 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) all other mutually agreed upon conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied and (II) the Borrower, each Guarantor Subsidiary, the Collateral Agent and each Incremental Lender (as applicable) shall execute and deliver to the Administrative Agent and the Collateral Agent such additional Collateral Documents and/or amendments to the Collateral Documents as the Co-Collateral Agents may reasonably request which are necessary to ensure that all Revolving Loans incurred pursuant to the Incremental Commitments and any Additional Commitment Fee and/or Additional Margin are secured by each relevant Collateral Document. The Administrative Agent shall have received documents and legal opinions promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such matters as are reasonably time, (i) the Total Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Document, (iii) Appendix A shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) to the extent requested by any Incremental Lender, Revolving Loan Notes will be issued, at the expense of the Borrower, to such Incremental Lender in conformity with the requirements of Section 2.6.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 2.23, (I) the Borrower shall, in coordination with the Administrative Agent. Upon , repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders), in each case to the extent necessary so that all of the Lenders participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments (after giving effect to any increase in the Total Commitment pursuant to this Section 2.23) and with the Borrower being obligated to pay to the respective Lenders any costs of the type referred to in Section 2.17(c) in connection with any existing Class such repayment and/or incurrence and (II) there shall be an automatic adjustment to the participations hereunder in Letters of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are Credit and Swing Line Loans held by the Lenders of each Lender so that each such Class on a pro rata basis Lender shares ratably in such participations in accordance with their Commitments (after giving effect to the respective amount establishment of Term Loans of such Class held by each Lenderany Incremental Commitment). The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (REV Group, Inc.)
Incremental Commitments. (1a) The Borrower mayCompany shall have the right, by written notice in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of the Administrative Agent or the Lenders (except, in either case, as otherwise provided in this Section 2.14), to request at any time and from time to time after the Effective Date and prior to the Final Maturity Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment, 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 from time Agent, the Company and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to time, request Incremental Term fund any Revolving Loans in excess of its Revolving Loan Commitments not to exceed $100,000,000 from one Commitment (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its RL Percentage, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14 (it being understood and agreed that is any Lender that does not agree to provide any such Incremental Commitment within ten Business Days after a Farm Credit Lender request therefor (which, in each case, or such shorter period as may include any existing Lender (but no such Lender shall be required to participate provided in any such request for Incremental Term Loan without its consentCommitments) and shall be subject deemed to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing have declined to provide any such Incremental Term Loans Commitment except to the extent such Lender thereafter executes and delivers an Incremental Commitment Agreement in their sole discretion accordance with the terms hereof), (such Lendersii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of the Administrative Agent or any other Lender; provided that any Person that is not a Lender prior to the effectiveness of its Incremental Commitment shall require the consent of the Administrative Agent, each Issuing Lender and the “Swingline Lender (which consents shall not be unreasonably withheld, conditioned or delayed) to provide an Incremental Term Loan Lenders”). Such notice shall set forth Commitment pursuant to this Section 2.14, (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.14 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Commitments permitted to be provided pursuant to this Section 2.14 shall not exceed in the aggregate $50,000,000, (v) the Company shall not increase the Total Revolving Loan Commitment pursuant to this Section 2.14 more than two times, (vi) if the Applicable Margins with respect to Revolving Loans to be borrowed incurred pursuant to an Incremental Commitment shall be higher in any respect than those applicable to any other Revolving Loans, the Applicable Margins for the other Revolving Loans and extension of credit hereunder shall be automatically increased as and to the extent needed to eliminate any deficiencies in accordance with the definition of “Applicable Margin” contained herein (such increase, the “Additional Margin”), (vii) all Revolving Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under the relevant Guaranties, on a pari passu basis will all other Loans (and related Obligations) secured by each relevant Security Document and guaranteed under each relevant Guaranty, and (viii) each Lender (including any Person which is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.14, (I) the Company, each other Borrower, each Subsidiary Guarantor, the Administrative Agent, the Swingline Lender and each Issuing Lender (if the consent of the Swingline Lender and each Issuing Lender are required pursuant to Section 2.14(a)(ii)) and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Borrowers and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the Incremental Commitment provided therein to occur on the date set forth in such Incremental Term Loan Commitments are to be an increase Commitment Agreement, which date in any existing Class of Term Loans or a new Class of Term Loans and (iii) event shall be no earlier than the date on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.14 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Term Loan Commitments are requested to become effective Commitment Agreement shall have been satisfied) and (which shallII) the Company, unless otherwise agreed by the Administrative Agenteach other Borrower, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Partieseach Subsidiary Guarantor, the Administrative Collateral Agent and any other Person whose consent is required each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an and the Collateral Agent such additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments and any Additional Credit Extension Amendment and such other documentation as Margin are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Term Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment. Each Additional Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.14, each Borrower shall, in coordination with the terms Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing Lenders); and
Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateTotal Revolving Loan Commitment pursuant to this Section 2.14) and use with the Borrowers being obligated to pay to the respective Lenders any costs of proceeds therefrom, the Borrower would be type referred to in compliance Section 2.11 in connection with Section 8.11 and any such repayment and/or Borrowing.
(ze) At 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 time of any existing Class provision of Term LoansIncremental Commitments pursuant to this Section 2.14, all dollar thresholds included in any determination made with respect to Excess Availability shall be increased automatically in an amount equal to the Lenders shall take any action as may be reasonably required percentage by which the Administrative Agent to ensure that Incremental Commitments increase the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderTotal Revolving Loan Commitment.
Appears in 1 contract
Sources: Abl Credit Agreement (Ciena Corp)
Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Banks (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 requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, and (which shall, unless otherwise agreed by iii) in the 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 case of Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have Commitments, whether such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation are to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 (andcommitments to make term loans with pricing, only to the extent a Borrowing is made on such datematurity, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.amortization,
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent (the “Incremental Request Notice”) from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount, in the aggregate, from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion, provided that each Incremental Term Lender and/or Incremental Revolving Facility shall be subject to the approval of (x) the Administrative Agent (which approval shall not be unreasonably withheld) unless no consent of the Administrative Agent would be required for an assignment to such Lendersperson pursuant to Section 9.04(b)(i)(B) and (y) the L/C Issuer and the Swingline Lender (which approval shall not be unreasonably withheld) unless no consent of the L/C Issuer and the Swingline Lender would be required for an assignment to such person pursuant to Section 9.04(b)(i)(C); provided, the “further, that any existing Lender approached to provide all or a portion of such Incremental Term Loan Lenders”)Commitments and/or Incremental Revolving Facility Commitments may elect or decline, in its sole discretion, to provide such Commitments. Such notice The Incremental Request 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 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by and (iii) (a) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after Term B Loan Commitments (the date “Incremental Term B Loan Commitment”) or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Other Term Loans”) and/or (b) whether such notice is deliveredIncremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing different from the Revolving Facility Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
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 not be guaranteed by any Subsidiaries of have (x) the Borrower that do not guarantee same terms as the existing Term B Loans and or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Incremental Term B Loan or Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and Date, (Biii) the Weighted Average Life to Maturity of any Incremental Term B Loan or Other Term Loans shall not be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the existing Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
, and (iv) Incremental Term Loans except as to pricing (which shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), the Other Revolving Loans shall have (x) the same terms as the Revolving Facility or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent and (v) until the date that is eighteen (18) months after the Closing Date, in the event that the Applicable Margin (at any analogous point in the Pricing Grid) for any Incremental Term Loan; provided thatB Loans or Other Term Loans is greater than the Applicable Margin for the existing Term B Loans by more than 50 basis points, then the terms applicable Applicable Margin for the existing Term B Loans shall be increased to any such the extent necessary so that the Applicable Margin (at each analogous point in the Pricing Grid) for the Incremental Term B Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, Other Term Loans is 50 basis points higher than the terms Applicable Margin for the existing Term B Loans; provided, further, that in determining the Applicable Margin applicable to the then outstanding Commitments existing Term B Loans and the Incremental Term B Loans or Other Term Loans, as reasonably determined (x) original issue discount or upfront or similar fees (collectively, “OID”) payable by the Borrower to the Lenders of the existing Term B Loans or the Incremental Term B Loans or Other Term Loans, in the primary syndication thereof shall be included (except with OID being equated to interest based on an assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to arrangers (or their respective affiliates) shall be excluded; and (z) if the ABR or Eurocurrency Rate “floor” for the Incremental Term B Loans or Other Term Loans is greater than the ABR or Eurocurrency Rate “floor,” respectively, for the existing Term B Loans the difference between such floor for the Incremental Term B Loans or Other Term Loans and the existing Term B Loans shall be equated to an increase in the Applicable Margin for purposes of this clause (v). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(g); and. 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.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.22 unless (w) on the date of such effectiveness, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and be continuing or would result therefrom.
(d) Each of 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 and the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans, as applicable, on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments that are Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) The Incremental Term Loans and Incremental Revolving Loans shall rank pari passu or, in the case of such Class are held by the Lenders Incremental Term Loans only, junior in right of such Class on a pro rata basis in accordance payment and of security with the respective amount of Term Loans of such Class held by each Lenderand Revolving Facility Loans.
Appears in 1 contract
Incremental Commitments. (1a) The At any time following the repayment in full of the Interim Term Facility (whether outstanding under this Agreement or the Interim Term Loan Assumption Agreement, as applicable) and prior to the Latest Maturity Date, the Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request Incremental Term Loan Commitments not to exceed $100,000,000 from that one or more Eligible Assignees, in each case, that is a Farm Credit Lender Persons (which, in each case, which may include any the then-existing Lender (but Lenders; provided that no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing obligated to provide such Incremental Commitments and may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loans under this paragraph (a), it being understood that (x) if such Incremental Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment; provided that the minimum aggregate principal amount accepted shall equal the lesser of (i) $10,000,000 or (ii) the aggregate Incremental Commitments proposed to be provided in response to the Borrower’s request. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000, (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum of (i) $150,000,000, (ii) the aggregate principal amount of (x) voluntary prepayments of the Term Loans and any Incremental Equivalent Debt and (y) voluntary prepayments of any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Commitments with respect thereto, in each case under clauses (x) and (y), other than prepayments from proceeds of long-term Indebtedness and (iii) any additional amount so long as on the date of incurrence of such Incremental Commitment (subject to the terms of Section 2.17(b) below), in the case of this clause (iii), the First Lien Leverage Ratio does not exceed 2.50 to 1.00 on a Pro Forma Basis (assuming the full amount available thereunder is drawn) (with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute Indebtedness secured on a pari passu basis with the Term Facilities for the purposes of calculating the First Lien Leverage Ratio even if unsecured). The Borrower shall be deemed to have utilized the amounts under clause (ii) prior to using the amounts under clause (i) or (iii) and the Borrower shall be deemed to have utilized the amounts under clause (iii) (to the extent compliant therewith) prior to utilization of the amounts under clause (i). The Borrower may arrange for one or more banks or other financial institutions, which may include any Lenders, to extend Revolving Credit Commitments, provide Incremental Term Loans or increase their applicable existing Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) an aggregate amount equal to the amount of the Incremental Commitment. In the event that one or more of such Persons offer to enter into such Revolving Credit Commitments, and such Persons, the Loan Parties, the Borrower and the Administrative Agent agree as to the amount of such Revolving Credit Commitments to be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Borrower in connection therewith, such Persons and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement or Incremental Term Loan Commitments being requested Amendment, as applicable. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (which shall be an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in a minimum amount of $10,000,000 such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the . Each Incremental Term Loans to be borrowed pursuant to such Assumption Agreement and each Incremental Term Loan Commitments are Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be an increase necessary or appropriate, in any existing Class the reasonable opinion of Term Loans or a new Class of Term Loans the Borrower and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Financial Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied and (ii) the Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be not less than ten Business Days after deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such notice is delivered).
Limited Condition Acquisition Agreement, (2) The Loan Partiesas of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment. Nothing contained in this Section 2.17 shall constitute, or otherwise be deemed to be, a commitment on the part of any other Person whose consent is required as provided above Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) The Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Credit Commitments; provided that:
(i) the any commitments to make Incremental Term Loans in the form of additional Initial Term B Loans shall not be guaranteed by any Subsidiaries have the same terms as the Initial Term B Loans, and shall form part of the Borrower that do not guarantee same Class of Initial Term B Loans, (x) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the existing Initial Term B Loans and (“Other Incremental Term Loans”) shall be secured on a pari passu basis by the same Collateral subject to compliance with clauses (and no additional collateralii) securing the then existing Obligations;through (vi) below,
(ii) the Other Incremental Term Loans incurred pursuant to clause (Aa) of this Section 2.17 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(iii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (Bwhich 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 terms, to the extent not consistent with the Initial Term B Loans, shall not be more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans,
(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 any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;with the longest remaining Weighted Average Life to Maturity,
(ivv) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Credit Commitments,
(except that any vi) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Credit Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront fees) as the applicable existing Class of Term Loans);Collateral, and
(vvii) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the above, any Incremental Term Loans shall be on terms and made pursuant to documentation to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.or
Appears in 1 contract
Sources: Credit Agreement (Cavium, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to timetime after the Effective Date, request Incremental Term Loan Commitments not to exceed $100,000,000 from in respect of one or more Eligible Assignees, Classes of term loans in each case, an aggregate amount at any time that is a Farm Credit Lender would not otherwise violate clause (which, in each case, c) of this Section at such time. The Incremental Commitments will be provided by Incremental Lenders (which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans Commitments in their sole discretion (own discretion. Any such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount 20,000,000 or, in each case, such lesser amount approved as permitted by the Administrative Agent, or equal to the maximum amount that can be incurred subject to clause (c) of this Section at such time), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (any such date, an “Incremental Effective Date”) and (iii) the interest rate, amortization, maturity and other terms being requested with respect thereto (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredshall comply with clause (b) below).
(2b) The Loan Parties, the Administrative Agent terms and conditions of any other Person whose consent is required as provided above Incremental Commitments and Loans to be made thereunder 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of be determined by the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of Lenders and the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by as set forth in the same Collateral applicable Incremental Facility Agreement; provided that (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (Bi) the Weighted Average Life to Maturity of any Incremental Term such Loans shall be no shorter than than, and the remaining Weighted Average Life Maturity Date applicable to such Loans shall be no earlier than, the latest Maturity Date in effect at the time of any then outstanding Class incurrence of Term such Loans;
, (ii) except as to interest rates, fees, other pricing terms, amortization, final maturity date and participation in prepayments, all representations and warranties, affirmative or negative covenants or events of default applicable for the benefit of Incremental Lenders having or holding such Incremental Commitments or Loans shall also be applicable for the benefit of all the Lenders and (iii) no Incremental Term Loan shall such Loans may participate on a greater pro rata basis or a less than pro rata basis with the then outstanding Term Loans (but not greater than a pro rata basis) in any voluntary or mandatory prepayment;repayments or prepayments hereunder.
(ivc) The Incremental Term Loans Commitments of any Class shall have be effected pursuant to an Incremental Facility Agreement executed and delivered by the Borrower, each Incremental Lender providing such interest rates, optional prepayment provisions Incremental Commitments and fees as the Administrative Agent; provided that
(i) the principal amount of Indebtedness that may be agreed between Incurred under an Incremental Commitment on any date shall not exceed the Lenders providing maximum principal amount of Secured Indebtedness that may be Incurred and secured by the Liens securing such Indebtedness, as of the date such Indebtedness is Incurred, after giving pro forma effect to the Incurrence of such Secured Indebtedness and the application of proceeds therefrom on such date, without causing a Default or Event of Default hereunder as a result of the Incurrence of such Secured Indebtedness on such date, (ii) the Class of Loans to be made under such Incremental Commitments shall be made thereunder on the effective date of the applicable Incremental Term Loan Commitments Facility Agreement and (iii) 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 existing Class of Term Loans);
(v) subject delivered to the aboveAdministrative Agent such legal opinions, any Incremental Term Loans board resolutions, secretary’s certificates, officer’s certificates and other customary documents as shall reasonably be on terms and pursuant to documentation to be determined requested by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except Administrative Agent in connection therewith. The Administrative Agent shall promptly notify each Lender as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiarieseffectiveness of each Incremental Facility Agreement. Each Incremental Facility Agreement may, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require without the consent of any Lender) , effect such amendments to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment Agreement and the incurrence other Loan Documents as may be necessary or appropriate, in the opinion 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. , to give effect to the provisions of this Section 2.23.
(d) All Incremental Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations under this Agreement and the other Loan Documents.
(e) Upon any increase the effectiveness of an Incremental Commitment of any existing Class Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Commitments and Loans of such Class held the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by each Lenderall agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
Appears in 1 contract
Incremental Commitments. 109 109
(164) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Banks (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 requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective 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 shallshall together with any then outstanding Initial Term B-1 Loans form a single Class of) Initial Term B-1 Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentInitial Term B-1 Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be not less than ten Business Days after in the date sole discretion of such notice is delivered)Lender.
(265) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: xxv.any (x) commitments to make additional Initial Term B-1 Loans shall have the same terms as the Initial Term B-1 Loans; provided that:
, and shall form part of the same Class of Initial Term B-1 Loans and (iy) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding 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 latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments, xxvi.the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall not be guaranteed by any Subsidiaries rank equally and ratably in right of security with the Initial Term B-1 Loans or, at the option of the Borrower Borrower, shall rank junior in right of security with the Initial Term B-1 Loans (provided, that do not guarantee if such Other Incremental Term Loans rank junior in right of security with the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Initial Term B-1 Loans, such Other Incremental Term Loans shall be no earlier than subject to a Permitted Junior Intercreditor Agreement and, for the then Latest Maturity Date and (B) the Weighted Average Life avoidance of doubt, shall not be subject to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
clause (v) subject to the above, any Incremental Term Loans shall below) or be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.unsecured,
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility 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 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the 2021 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 2021 Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B-1 Loans (“Other Term Loans”).
(2b) The Loan PartiesBorrower, the Administrative Agent each applicable Co-Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B-1 Loans and/or 2021 Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B-1 Loans or 2021 Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (Aa) 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 Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich 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 Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B-1 Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term 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 aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially similar terms as the 2021 Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term LoanLoan 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 exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms 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 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 and 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, as reasonably determined by the Borrower (except such Previously Absent Financial Maintenance Covenant shall automatically apply to the extent that this Agreement is amended Revolving Facilities and (which y) with respect to Other Term Loans, such Previously Absent Financial Maintenance Covenant shall not require automatically apply to the Facilities, in each case, without the consent of any Lenderother party hereto. 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 incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e); and. 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 “Loan Documents” hereunder and 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.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the 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 or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , 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 reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any 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 Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall 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 of a different Class), 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 Revolving Facility Loans of a different Class), 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 apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held 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) 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 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 final maturity date of any Extended Term Loans shall be no earlier than the 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 same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shal
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.)
Incremental Commitments. (1a) The Borrower mayCompany shall have the right, by written notice in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of the Administrative Agent or the Lenders (except, in either case, as otherwise provided in this Section 2.14), to request at any time and from time to time after the Effective Date and prior to the Final Maturity Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment, 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 from time Agent, the Company and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to time, request Incremental Term fund any Revolving Loans in excess of its Revolving Loan Commitments not to exceed $100,000,000 from one Commitment (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its RL Percentage, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14 (it being understood and agreed that is any Lender that does not agree to provide any such Incremental Commitment within ten Business Days after a Farm Credit Lender request therefor (which, in each case, or such shorter period as may include any existing Lender (but no such Lender shall be required to participate provided in any such request for Incremental Term Loan without its consentCommitments) and shall be subject deemed to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing have declined to provide any such Incremental Term Loans Commitment except to the extent such Lender thereafter executes and delivers an Incremental Commitment Agreement in their sole discretion accordance with the terms hereof), (such Lendersii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender; provided that any Lender (or Person who is an Eligible Transferee who will become a Lender) providing Incremental Commitments shall require the consent of the Administrative Agent, each Issuing Lender and the “Incremental Term Loan Lenders”Swingline Lender (which consents shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth , (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.14 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, 50,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Loans Commitments permitted to be borrowed provided pursuant to this Section 2.14 after the Amendment and Restatement Effective Date shall not exceed in the aggregate $200,000,000, (or, if at the time of the making of Incremental Commitments pursuant to this Section 2.14, the excess of (x) the Borrowing Base at such time, minus (y) the Cash Contribution to the Borrowing Base at such time, minus (z) the Total Revolving Loan Commitments at such time (prior to giving effect to such Incremental Term Loan Commitments) is greater than the amount that would otherwise be permitted by this clause (iv) at such time, such greater amount), (v) all Revolving Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under the relevant Guaranties, on a pari passu basis with all other Loans (and related Obligations) secured by each relevant Security Document and guaranteed under each relevant Guaranty, and (vi) each Lender (including any Person which is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the other applicable Credit Documents. The effectiveness of any Incremental Commitments are shall be subject to be the provisions of Section 13.23.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.14, (I) the Company, each other Borrower, each Subsidiary Guarantor, the Administrative Agent, the Swingline Lender and each Issuing Lender (if the consent of the Swingline Lender and each Issuing Lender is required pursuant to Section 2.14(a)(ii)) and each such Lender or other Eligible Transferee which agrees to provide an increase Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Borrowers and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the Incremental Commitment provided therein to occur on the date set forth in such Incremental Commitment Agreement, which date in any existing Class of Term Loans or a new Class of Term Loans and (iii) event shall be no earlier than the date on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.14 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Term Loan Commitments are requested to become effective Commitment Agreement shall have been satisfied) and (which shallII) the Company, unless otherwise agreed by the Administrative Agenteach other Borrower, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Partieseach Subsidiary Guarantor, the Administrative Collateral Agent and any other Person whose consent is required each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and the Collateral Agent such other documentation as additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Term Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment. Each Additional Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this Section 2.14, each Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders), in each case to the extent necessary so that all of the Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 2.14) and with the Borrowers being obligated to pay to the respective Lenders any costs of the type referred to in Section 2.11 in connection with any such repayment and/or Borrowing.
(e) At the time of any provision of Incremental Commitments pursuant to this Section 2.14, all dollar thresholds included in any determination made with respect to Excess Availability and the dollar amount of the Liquidity Threshold shall be increased automatically in an amount equal to the percentage by which the Incremental Commitments increase the Total Revolving Loan Commitment; provided that the foregoing clause (de) shall specify the terms of the applicable Incremental Term Loans; provided that:
not apply (i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date including in respect of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject incurred prior to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity First Amendment Effective Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions dollar thresholds set forth in clauses (a) and (b) the definition 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender“Convertible Notes Maturity Default”.
Appears in 1 contract
Sources: Abl Credit Agreement (Tesla, Inc.)
Incremental Commitments. (1a) The Borrower maymay at any time or from time to time after the Effective Date, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assigneesincreases in the amount of the Commitments (each such increase, a “Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, (x) no Default shall exist and (y) all representations and warranties in each casethis 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, shall not exceed $100,000,000. Each Commitment Increase shall be in an aggregate principal amount that is a Farm Credit Lender not less than $10,000,000 (which, provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in each case, the next sentence). Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of the relevant Commitment Increase. Commitment Increases may include be provided by any existing Lender or by any other bank or other financial institution (but no any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 9.04 for an assignment of Revolving Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be required provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to participate an amendment (each, an “Incremental Amendment”) to this Agreement, executed by the Parent, the Borrower, each Lender agreeing to provide such Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent. Each Incremental Amendment 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 2.20. The effectiveness of any such Incremental Term Loan without its consent) and Amendment shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) satisfaction on the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms thereof of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries each of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses 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 2.20, (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 aggregate Commitments of all Lenders represented by such Lender’s Commitment and (b) if, on the date of Section 5.02 such increase, there are satisfied whether any Revolving Loans outstanding, such Revolving Loans shall on or not a Credit Extension is made on such date (and, only prior 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings effectiveness of such Class are held 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 Lenders of such Class on a pro rata basis Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.15. The Administrative Agent and the respective amount of Term Loans of such Class held by each LenderLenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.20 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Lorillard, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request an increase in the aggregate amount of the Commitments (each such increase, an “Incremental Term Loan Commitments Commitment”), as applicable, in an aggregate amount not to exceed $100,000,000 50,000,000, from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)all of which must be permitted to become assignees of Commitments or Loans under Section 9.04. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by equal to the Administrative Agent), remaining unused amount) and (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)effective.
(2b) The Loan PartiesBorrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, subject to the prior written consent of the Administrative Agent (such consent not to be unreasonably delayed or withheld) and, subject to the prior written consent of the Administrative Agent (such consent not to be unreasonably delayed or withheld), additional banks, financial institutions and any other Person whose consent is institutional lenders who will become Incremental Lenders in connection therewith, in each case, solely to the extent such consent, if any, would be required under Section 9.04 for an assignment of Loans or Commitments, as provided above applicable, to additional banks, financial institutions and other institutional lenders. The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Person. The terms and provisions of the Incremental Commitments shall be identical to those of the Commitments. The Incremental Commitments shall rank pari passu in right of payment and security with the Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each Additional Credit Extension Amendment pursuant of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to this clause the extent (dbut only to the extent) shall specify necessary to reflect the existence and terms of the applicable Incremental Term Loans; provided that:
(i) Commitments evidenced thereby, and the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments Administrative Agent and the Borrower (except that any Incremental Term Loans forming an addition may revise this Agreement 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 existing Class of Term Loans);evidence such amendments.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.18 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses paragraphs (a) and (b) of Section 5.02 are satisfied whether or not 4.02 shall be satisfied, a Credit Extension is made on certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (andii) except as otherwise specified in the applicable Incremental Assumption Agreement, 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents legal opinions, board resolutions and legal opinions as to such matters as are other closing certificates reasonably requested by the Administrative Agent. Upon any increase Agent and consistent with those delivered on the Closing Date under Section 4.01 and (iii) all fees and expenses owing in respect of any existing Class of Term Loans, such Incremental Commitment to the Administrative Agent and the Lenders shall take have been paid in full.
(d) On the date of effectiveness of any action as may Incremental Commitments, the Borrower shall (A) prepay the outstanding Loans (if any) in full, (B) simultaneously borrow new Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Borrowings, with Adjusted LIBO Rates equal to the outstanding Adjusted LIBO Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be reasonably required effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders, the Incremental Lenders and the existing Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent to ensure that Agent, so that, after giving effect thereto, the Borrowings of such Class Loans are held ratably by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans Commitments of such Class held by each LenderLenders (after giving effect to such Incremental Commitments) and (C) pay to the Lenders the amounts, if any, payable under Section 2.13 as a result of any such prepayment.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower Company may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request (i) one or more additional Classes of Term Loans (each, an “Incremental Term Loan Commitments not to exceed $100,000,000 Facility”) or (ii) one or more additional Term Loans of the same Class of any existing Class of Term Loans (each, an “Incremental Term Increase” and together with any Incremental Term Facility, the “Incremental Facilities”), from one or more Eligible AssigneesBanks (in the sole discretion of such Banks), or Approved Funds, or any other financial institution (other than Disqualified Institutions), in each casean amount such that, on a pro forma basis, the Debt to Capitalization Ratio is not greater than 0.35:1.00; provided that at the time of the incurrence of such Incremental Facilities and immediately after giving effect thereto and to the use of proceeds thereto (assuming the full utilization thereof), no Default or Event of Default shall have occurred and be continuing or would result therefrom; provided, further, that is each such Person, if not already a Farm Credit Lender (whichBank hereunder, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consentsthe approval of the Administrative Agent (not to be unreasonably withheld, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”conditioned or delayed). Such notice shall set forth (iA) the amount of the Incremental Term Loan Commitments being requested Facility or Incremental Term Increase, as applicable, (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent5,000,000), (ii) 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 a new Class of Term Loans and (iiiB) the date on which such Incremental Term Loan Commitments are Facility or Incremental Term Increase, as applicable, is requested to become effective (which shallshall not be less than 10 Business Days nor more than 60 calendar days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) in the case of an Incremental Term Facility or an Incremental Term Increase, whether such Incremental Term Facility or Incremental Term Increase are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). All Incremental Term Facilities and Incremental Term Increases shall be made in Dollars unless otherwise agreed by the Company, the Administrative Agent, and the lenders providing such Incremental Term Facilities or Incremental Term Increase. For the avoidance of doubt, Incremental Term Facilities and Incremental Term Increases may be not less than ten Business Days after the date such notice is delivered)provided on a delayed draw basis.
(2b) The Loan PartiesIn connection with any Incremental Facility, the Administrative Agent Company and any other Person whose consent is required as provided above each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the such Incremental Facility. Subject to clause (c) below, each Incremental Assumption Agreement in respect of an Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) Facility or an Incremental Term Increase shall specify the terms of the applicable such Incremental Term Loans; provided Facility or Incremental Term Increase to be made thereunder. The Administrative Agent shall promptly notify each Bank as to the effectiveness of each Incremental Assumption Agreement. 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 Facility evidenced thereby. Any such amendment shall be memorialized in writing by the Administrative Agent with the Company’s consent (in each case, not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(c) The terms of each Incremental Facility shall be reasonably satisfactory to the Administrative Agent and in any event:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries unsecured and shall rank pari passu in right of the Borrower that do not guarantee payment with the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;Term Loans;
(ii) (A) shall not mature earlier than the Latest Maturity Date of any the Term Loans outstanding at the time of incurrence of such Incremental Term Loans Facility or Incremental Term Increase, as applicable;
(iii) shall be no earlier than the then Latest Maturity Date and (B) the have a Weighted Average Life to Maturity of any Incremental Term Loans shall be no not shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of existing Term LoansLoans;
(iv) subject to clauses (ii) and (iii) above, may have amortization determined by the Company and the applicable Incremental Term Lenders;
(v) shall have an Applicable Margin determined by the Company and the applicable Incremental Term Lenders;
(iiivi) no Incremental Term Loan shall may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis with the then outstanding basis) in any voluntary or mandatory prepayments of existing Term Loans hereunder, as specified in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); Assumption Agreement; and
(vivii) subject to Section 1.06there shall be no obligor in respect of any Incremental Facility other than the Company, no as borrower.
(d) No Incremental Term Loan Commitment Facility or Incremental Term Increase shall become effective under this Section 2.01(b) unless 2.08 unless, on the date of such effectiveness, (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (xi) the conditions set forth in clauses paragraphs (a) and (b) of Section 5.02 are 3.02 shall be satisfied whether or not as if it was a Credit Extension is made on borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date (and, only to and executed by a Responsible Officer of 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 Company; and (zii) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably closing certificates, if requested by the Administrative Agent. Upon any increase , opinions of any existing Class counsel, and other customary documentation requested by the Administrative Agent.
(e) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably required by necessary to ensure that all Incremental Term Facilities or Incremental Term Increases (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding SOFR Borrowing of the relevant Class to ensure that the Borrowings be converted into a Base Rate Borrowing of such Class are held on the date of each Incremental Term Facility, Incremental Term Increase, or by allocating a portion of each Incremental Term Facility or Incremental Term Increase to each outstanding SOFR Term Borrowing of the Lenders of such same Class on a pro rata basis in accordance with basis, even though as a result thereof such Incremental Term Facility or Incremental Term Increase may effectively have a shorter Interest Period than the respective amount of Term Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). In addition, to the extent any Incremental Term Facility or Incremental Term Increase are not Other Term Loans, any scheduled amortization payments required to be made after the making of such Class held by each LenderIncremental Term Facility or Incremental Term Increase may be adjusted to the extent required under the applicable Incremental Assumption Agreement, to give effect to any amortization applicable to such Incremental Term Facility.
(f) This Section 2.08 shall supersede any provisions in Section 2.10 or Section 9.05 to the contrary.
Appears in 1 contract
Sources: Term Loan Agreement (American Equity Investment Life Holding Co)
Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Applicable Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in Section 1.07) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility |US-DOCS\123898161.25157781893.13|| Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Applicable Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Incremental Term Loan Lenders”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 requested (which shall be in minimum increments of the Dollar Equivalent of $5,000,000 and a minimum amount of $10,000,000 and minimum increments the Dollar Equivalent of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Applicable Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) (a) commitments to make term loans with terms identical to (and which shallshall together with any then outstanding Initial Term B Loans form a single Class of) Initial Term B Loans or (b) commitments to make term loans with terms identical to (and which shall together with any then outstanding Initial2025 Term A Loans form a single Class of) Initial2025 Term A Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentInitial Term B Loans and the Initial2025 Term A Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be not less than ten Business Days after in the date sole discretion of such notice is delivered)Lender.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Applicable Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Applicable Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x) commitments to make additional Initial Term B Loans shall have the same terms as the Initial Term B Loans, and shall form part of the same Class of Initial Term B Loans, (y) commitments to make additional Initial2025 Term A Loans shall have the same terms as the Initial2025 Term A Loans, and shall form part of such Class of Initial2025 Term A Loans and (z) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding 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 latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving 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 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 and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall subject to clause (v) below) or be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;unsecured,
(iiiii) (A) the Maturity Date final maturity date of any such Other Incremental Term Loans (x) other than any Permitted Incremental Term A Loans, any Permitted Earlier Maturity Debt not to exceed at the time of incurrence the Permitted Earlier Maturity Debt Cap, and |US-DOCS\123898161.25157781893.13|| Customary Bridge Financings, shall be no earlier than the then Latest Initial Term B Facility Maturity Date and (y) other than any Permitted Incremental Term A Loans not to exceed at the time of incurrence the Permitted Earlier TLA Maturity Debt Cap and Customary Bridge Financings, shall be no earlier than the Initial2025 Term A 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 Incremental Term Lenders in their sole discretion), any such Other Incremental Term Loans shall have (x) the same terms as the Initial Term B Loans, (y) the same terms as the Initial2025 Term A Loans or (z) such other terms as shall be reasonably satisfactory to the Applicable 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 Initial Term B Facility Maturity Date),
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than any Permitted Incremental Term A Loans, 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 shorter than the remaining Weighted Average Life to Maturity of the Initial Term B Facility,
(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 Borrower, except that with respect to any Other Incremental Term Loan incurred on or prior to the date that is six (6) months following the Closing Date and in the form of a syndicated term loan B facility, in each case, secured by Liens on the Collateral that are pari passu with the Liens thereon securing the Initial Term B Loans, the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Initial Term B Loans by no more than 0.75%, or if it does so exceed such All-in Yield (such excess, the “Term Yield Differential”) then the Applicable Margin (or the Floor as provided in the following proviso) applicable to such Initial 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 Floor being applicable to such Other Incremental 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 Eurocurrency RateTerm SOFR in effect for an Interest Period of three (3) months’ duration at such time, and, with respect to such excess, the Floor applicable to the outstanding Term B 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 B Loans then outstanding,
(vi) such Other Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis or solely to the same extent that any existing Class of Term Loans;
(iii) no Incremental Term Loan shall participate Loans participates on a greater than pro rata basis with as compared to any other existing Class of Term Loans, on a greater than pro rata basis, than the then outstanding Term Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, and the Borrower |US-DOCS\123898161.25157781893.13||
(except that any viii) Other Incremental Term Loans forming an addition and Incremental Revolving Facility Commitments shall not be secured by any 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 an existing Class 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, for the avoidance of doubt, to (x) provide that the Lenders providing any Permitted Incremental Term A Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Financial Covenant and be included in the “Required Financial Covenant Lenders); and” and (y) make appropriate changes to Sections 6.10, 7.01 and 9.08 with respect to the control of remedies in the event of a default in respect of the Financial Covenant. 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 “Loan Documents” hereunder and may be memorialized in writing by the PR Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist giving pro forma effect to such (subject, in the case of any tranche of Incremental Term Loans or any Incremental Revolving Facility Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromthat is used to finance a Limited Condition Transaction, to Section 1.07); (xii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother 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 Lenders, participating in such tranche of Incremental Term Loans or Incremental Revolving Facility Commitment, as applicable, agree, the foregoing clause (ii) shall be limited to the Specified Representations, and in the case of any Limited Condition Acquisition (bother 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 Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, 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 Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Applicable Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Applicable Administrative Agent. Upon any increase The Applicable Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Applicable Administrative Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the Borrowings outstanding applicable Class of such Class are held by the Lenders of such Class Term Loans on a pro rata basis basis, and (ii) all Revolving Facility Loans in accordance with respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the respective amount applicable Class of Term outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply |US-DOCS\123898161.25157781893.13|| to any conversion of such Class held SOFR Loans or Eurocurrency Loans to ABR Loans reasonably required by each Lenderthe Applicable Administrative Agent to effect the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Millerknoll, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to timetime when: (w) no Default exists or would result after giving pro forma effect to such Incremental Term Borrowing, (x) all representations and warranties set forth in the Loan Documents shall be true and correct in all material respects immediately at the time of, and after giving effect to, such Incremental Term Borrowing, (y) an updated Library Value Report covering such matters as the Administrative Agent shall reasonably require (but in any event including all such matters contained in the Initial Library Value Report), all at the Borrower’s expense, has been delivered demonstrating that such incurrence of Incremental Term Loans (and all other Incremental Term Loans and Initial Term Loans currently outstanding) does not exceed 50% of the Eligible Library Value, and (z) at the time of, or after giving effect to such Incremental Term Borrowing (and any Investments made with such funds), the Borrower is in pro forma compliance with the financial covenants set forth in Article V (including that the Maximum Consolidated Leverage Ratio does not exceed 2.75:1.00 in any event); request Incremental Term Loan Commitments in an amount not to exceed $100,000,000 the Incremental Term Loan Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”), each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall not be unreasonably withheld, conditioned or delayed) to the Administrative Agent. Such notice shall set forth forth: (iA) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 5,000,000 or remaining permitted amount or, in each case, such lesser amount approved by equal to the Administrative Agentremaining Incremental Term Loan Amount), (ii) 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 a new Class of Term Loans and (iiiB) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, shall not be not less than ten 10 Business Days nor more than 60 days after the date of such notice is deliverednotice), and (C) whether such Incremental Term Loan Commitments are commitments to make Term Loans with identical terms to any existing Tranche of Term Loans or commitments to make term loans with terms different from any existing Tranche of Term Loans outstanding.
(2b) The Borrower may, by written notice to the Administrative Agent from time to time when: (w) no Default exists or would result after giving pro forma effect to such Additional Revolving Loan PartiesCommitments and any making of the related Additional Revolving Loans, (x) all representations and warranties set forth in the Loan Documents shall be true and correct in all material respects immediately at the time of, and after giving effect to, Additional Revolving Loan Commitments and any making of the related Additional Revolving Loans, (y) an updated Revolving Borrowing Base Certificate has been delivered to the Administrative Agent at the time of such Additional Revolving Loan Commitments becoming effective and upon any making of any Additional Revolving Loans and (z) at the time of, or after giving effect to such Additional Revolving Loan Commitments and any making of the related Additional Revolving Loans, the Borrower is in pro forma compliance with the financial covenants set forth in Article V; request Additional Revolving Loan Commitments in an amount not to exceed the Additional Revolving Loan Commitment Amount from one or more Persons, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall not unreasonably withheld, conditioned or delayed) to the Administrative Agent and any other each Issuing Bank. Such notice shall set forth (A) the amount of the Additional Revolving Loan Commitments being requested (which shall be in minimum increments of $250,000 and a minimum amount of $2,500,000 or such lesser amount equal to the remaining Additional Revolving Loan Commitment Amount) and (B) the date on which such Additional Revolving Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice). The Borrower and each Person whose consent is required as provided above providing an Additional Revolving Loan Commitment shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Revolving Loan Commitment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Additional Revolving Loan Commitment of each such Person (it being understood that notwithstanding anything herein to the contrary, no Lender shall be obligated hereunder to provide any Additional Revolving Loan Commitment). Such Additional Revolving Loan Commitments will serve to increase the then-applicable Revolving Loan Commitment and Revolving Maximum Credit Amount. On any date on which any Additional Revolving Loan Commitments are effective, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each additional Revolving Lender providing a portion of the Additional Revolving Loan Commitment in respect of such increase, and each such additional Revolving Lender will automatically and without further act be deemed to have assumed the same such that, after giving effect to each such deemed assignment and assumption, all of the Revolving Lenders participate in the Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments and 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 Additional Revolving Loans be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving 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 2.17. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(c) The Borrower and each Incremental Term Loan Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence each Tranche of Incremental Term Loan Commitments of each Incremental Term Loan Lender (it being understood that notwithstanding anything herein to the contrary, no Lender shall be obligated hereunder to provide any Incremental Term Loan Commitment). Each Additional Credit Extension Amendment The terms of any Tranche of Incremental Term Loan Commitments (including the Effective Yield applicable to such Tranche) may differ from any existing Tranche of Term Loans outstanding in respect of interest rate, amortization and maturity, provided that, such Tranche of Incremental Term Loans shall have (i) an Initial Incremental Term Loan Maturity Date of no earlier than the then latest maturing Tranche of outstanding Term Loans, (ii) 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, (iii) the Incremental Term Loans shall not be secured by assets other than Collateral and not guaranteed by persons other than Guarantors and (iv) each Incremental Term Borrowing shall be secured on a no more senior than pari passu basis on the Collateral securing the Obligations; provided further, that if the Effective Yield for 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 Tranche of then outstanding Term Loans by more than 0.25% per annum, the Applicable Margins for all then outstanding Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin”. Notwithstanding anything to the contrary contained above in this Section 2.20, the Incremental Term Loan Commitments provided pursuant to each Incremental Term Loan Commitment Assumption Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this clause Agreement (dwith a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) shall specify the terms of the applicable Incremental Term Loansor a combination thereof (i.e., ▇-▇, ▇-▇, ▇-▇, ▇-▇, C-1, C-2, etc.); provided that, with the consent of the Administrative Agent, the parties to a given Incremental Term Loan Assumption 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 Term Loan Assumption Agreement shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (Scheduled Maturity Date and no additional collateral) securing the then existing Obligationssame Applicable Margins of Loans to which the new Incremental Term Loans are being added;
(ii) (A) the Maturity Date of any new Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 amortization schedule as then remains with respect to the Tranche to which such new Incremental Term Loans are being added (other than upfront feeswith 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 applicable existing Class Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining scheduled principal payment of the respective Tranche proportionately; and
(iii) on the date of the making of such new Incremental Term Loans);
(v) subject , and notwithstanding anything to the abovecontrary set forth in Section 2.10, any such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the respective Tranche on terms and pursuant a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans or Revolving Loans of the respective Tranche (after giving effect to documentation to be determined by the Borrower and the Lenders providing incurrence of such new Incremental Term Loan; provided that, Loans) on a pro rata basis.
(iv) To the terms applicable to any extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiariesthen-outstanding Borrowings of Eurodollar Rate Loans of such Tranche, than it is acknowledged that the terms effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Rate Loans of such Tranche and which will end on the then 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 Commitments and Borrowings of Term Loans of such Tranche which are maintained as Eurodollar Rate Loans, the Lenders that have made such Incremental Term Loans shall be entitled to receive from the Borrower such amounts, as reasonably determined by the Borrower respective Lenders, to compensate them for funding the new Incremental Term Loans of the respective Tranche during an existing Interest Period (except rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and each Additional Revolving Loan Commitment Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Additional Revolving Loan Commitment Assumption Agreement, this Agreement shall be deemed amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby or the Additional Revolving Loan Commitments and Additional Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement is amended (which shall not require and the consent of any Lender) other Loan Documents to incorporate evidence such more restrictive provisions for the benefit of the then existing Lenders); andamendments.
(vie) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or additional Revolving Loan Commitment shall become effective under this Section 2.01(b) 2.20 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses (aSection 3.2(a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date shall be satisfied, (and, only to ii) except as otherwise specified in 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 applicable Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefromLoan Assumption Agreement or Additional Revolving Credit Commitment Assumption Agreement, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents legal opinions, board resolutions and legal opinions as to such matters as are reasonably other closing certificates requested by the Administrative Agent. Upon any increase , (iii) to the extent reasonably necessary to maintain the continuing priority of any existing Class the Lien of Term Loansthe Security Documents as security for the Obligations, the Lenders shall take any action as may be reasonably required determined by the Administrative Agent (x) the applicable Loan Party to ensure any Security Documents shall have entered into, and delivered to the Administrative Agent, at the direction of the Administrative Agent a modification or new Security Document in proper form for filing or recording in the relevant jurisdiction and in a form satisfactory to the Administrative Agent, (y) the Borrower shall have caused to be delivered to the Administrative Agent for the benefit of the Secured Parties an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the Borrowings priority of such Class the Lien of the Security Documents as security for the Obligations has not changed and confirming or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are held by no intervening liens or encumbrances which may then or thereafter take priority over the Lenders Lien of such Class on a pro rata basis in accordance with the respective amount Security Documents and (z) the Borrower shall have delivered, at the request of Term Loans the Administrative Agent, to the Administrative Agent or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of such Class held by each Lenderthe Lien of the Security Documents as security for the Obligations.
Appears in 1 contract
Sources: Credit Agreement (Cinedigm Corp.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent (the “Incremental Request Notice”) from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount, in the aggregate, from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion, provided that each Incremental Term Lender and/or Incremental Revolving Facility shall be subject to the approval of (x) the Administrative Agent (which approval shall not be unreasonably withheld) unless no consent of the Administrative Agent would be required for an assignment to such Lendersperson pursuant to Section 9.04(b)(i)(B) and (y) the L/C Issuer and the Swingline Lender (which approval shall not be unreasonably withheld) unless no consent of the L/C Issuer and the Swingline Lender would be required for an assignment to such person pursuant to Section 9.04(b)(i)(C); provided, the “further, that any existing Lender approached to provide all or a portion of such Incremental Term Loan Lenders”)Commitments and/or Incremental Revolving Facility Commitments may elect or decline, in its sole discretion, to provide such Commitments. Such notice The Incremental Request 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 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by and (iii) (a) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after Term A Loan Commitments (the date “Incremental Term A Loan Commitment”), Term B Loan Commitments (the “Incremental Term B Loan Commitment”) or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the Term A Loans or the Term B Loans (“Other Term Loans”) and/or (b) whether such notice is deliveredIncremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing different from the Revolving Facility Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
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 not be guaranteed by any Subsidiaries of have (x) the Borrower that do not guarantee same terms as the existing Term B Loans and or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Incremental Term A Loan shall be no earlier than the Term A Facility Maturity Date and the final maturity date of any Incremental Term B Loan or Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and Date, (Biii) the Weighted Average Life to Maturity of any Incremental Term Loans A Loan shall not be no shorter than the remaining Weighted Average Life to Maturity of the existing Term A Loans and the Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term B Loan shall participate on a greater than pro rata basis with the then outstanding or Other Term Loans in any mandatory prepayment;
shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term B Loans, and (iv) Incremental Term Loans except as to pricing (which shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), the Other Revolving Loans shall have (x) the same terms as the Revolving Facility or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent and (v) until the date that is eighteen (18) months after the Closing Date, in the event that the Applicable Margin (at any analogous point in the Pricing Grid) for any Incremental Term Loan; provided thatB Loans or Other Term Loans is greater than the Applicable Margin for the existing Term B Loans by more than 25 basis points, then the terms applicable Applicable Margin for the existing Term B Loans shall be increased to any such the extent necessary so that the Applicable Margin (at each analogous point in the Pricing Grid) for the Incremental Term B Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, Other Term Loans is 25 basis points higher than the terms Applicable Margin for the existing Term B Loans; provided, further, that in determining the Applicable Margin applicable to the then outstanding Commitments existing Term B Loans and the Incremental Term B Loans or Other Term Loans, as reasonably determined (x) original issue discount or upfront or similar fees (collectively, “OID”) payable by the Borrower to the Lenders of the existing Term B Loans or the Incremental Term B Loans or Other Term Loans, in the primary syndication thereof shall be included (except with OID being equated to interest based on an assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to arrangers (or their respective affiliates) shall be excluded; and (z) if the ABR or Eurocurrency Rate “floor” for the Incremental Term B Loans or Other Term Loans is greater than the ABR or Eurocurrency Rate “floor,” respectively, for the existing Term B Loans the difference between such floor for the Incremental Term B Loans or Other Term Loans and the existing Term B Loans shall be equated to an increase in the Applicable Margin for purposes of this clause (v). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(g); and. 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.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.22 unless (w) on the date of such effectiveness, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and be continuing or would result therefrom.
(d) Each of 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 and the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term A Loans or Term B Loans, when originally made, are included in each Borrowing of outstanding Term A Loans or Term B Loans, as applicable, on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments that are Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) The Incremental Term Loans and Incremental Revolving Loans shall rank pari passu or junior in right of such Class are held by the Lenders payment and of such Class on a pro rata basis in accordance security with the respective amount of Term Loans of such Class held by each Lenderand Revolving Facility Loans.
Appears in 1 contract
Sources: Credit Agreement (EVERTEC, Inc.)
Incremental Commitments. (1a) The Borrower mayBorrowers shall have the right, by written notice without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.15) or the Lenders (except for the Issuing Lenders as provided below), to request at any time and from time to time after the Effective Date and prior to the Revolving Commitment Termination Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided, that, (i) no Lender shall be obligated to provide an Incremental Commitment, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and has executed and delivered to the Administrative Agent from time Agent, the Company and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to time, request Incremental Term fund any Revolving Loans in excess of its Revolving Loan Commitments not to exceed $100,000,000 from one Commitment (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its RL Percentage, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.15; provided, that, the Lenders shall have at least 10 Business Days following the Borrowers’ request for Incremental Commitments to decide whether or not to provide any such Incremental Commitments (and, to the extent that is a Farm Credit any such Lender (whichfails to respond within such 10 Business Day period, in each case, may include any existing Lender (but no such Lender shall be required deemed to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing have rejected to provide such an Incremental Term Loans in their sole discretion Commitment), (such Lendersii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of the Administrative Agent or any other Lender; provided, that, any Person that is not a Lender prior to the effectiveness of its Incremental Commitment shall require the consent of the Administrative Agent, the “Swingline Lender and each Issuing Lender (each of which consents shall not be unreasonably withheld) to provide an Incremental Term Loan Lenders”). Such notice shall set forth Commitment pursuant to this Section 2.15, (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.15 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, 5,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Loans Commitments permitted to be borrowed provided pursuant to such this Section 2.15 shall not exceed in the aggregate $25,000,000, (v) the Borrowers shall not increase the Total Revolving Loan Commitment pursuant to this Section 2.15 more than five times, (vi) all Revolving Loans incurred pursuant to an Incremental Term Loan Commitments are Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under the Guaranty, on a pari passu basis with all other Obligations secured by each relevant Security Document and guaranteed under the Guaranty, and (vii) each Lender (including any Person which is an Eligible Transferee who will become a Lender) agreeing to be provide an increase Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in any existing Class of Term Loans or a new Class of Term this Agreement, participate in Swingline Loans and (iiiLetters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a) on a pro rata basis and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)other applicable Credit Documents.
(2b) The Loan At the time of the provision of Incremental Commitments pursuant to this Section 2.15, (i) the Credit Parties, the Administrative Agent and any each such Lender or other Person whose consent Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall 63 #93457508v14
(c) It is required as understood and agreed that the Incremental Commitments provided above shall execute and deliver to the Administrative Agent by an Additional Credit Extension Amendment and such other documentation Incremental Lender or Incremental Lenders, as the Administrative Agent case may be, pursuant to each Incremental Commitment Agreement shall reasonably specify to evidence constitute part of, be added to, and have the same terms and conditions as, the Total Revolving Loan Commitment and each Incremental Term Loan Commitment. Each Additional Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.15, each Borrower shall, in coordination with the terms Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing Lenders); and
Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateTotal Revolving Loan Commitment pursuant to this Section 2.15) and use with the Borrowers being obligated to pay to the respective Lenders any costs of proceeds therefrom, the Borrower would be type referred to in compliance Section 2.11 in connection with Section 8.11 and any such repayment and/or Borrowing.
(ze) At 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 time of any existing Class provision of Term LoansIncremental Commitments pursuant to this Section 2.15, all dollar thresholds included in any determination made with respect to Excess Availability shall be increased automatically in an amount equal to the Lenders shall take any action as may be reasonably required percentage by which the Administrative Agent to ensure that Incremental Commitments increase the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderTotal Revolving Loan Commitments.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower mayBorrowers shall have the right, in 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 after the Effective Date, and prior to the Final Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by written notice the Borrowers, 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 from time an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to timefund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.15, request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit (ii) any Lender (whichincluding any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, in (iii) each case, may include any existing Lender (but no such Eligible Transferee who will become a Lender shall be required to participate in any such be reasonably satisfactory to the Administrative Agent, (iv) each provision of Incremental Term Loan without its consent) and shall be subject Commitments on a given date pursuant to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which this Section 2.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of $10,000,000 all Incremental Commitments provided pursuant to this Section 2.15, shall not exceed the Maximum Incremental Commitment Amount and minimum increments of $10,000,000(vi) all Revolving Loans (and all interest, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agentfees and other amounts payable thereon), (ii) whether the Incremental Term Loans to be borrowed made pursuant to such an Incremental Term Loan Commitments are Commitment shall be entitled to be an increase in any existing Class the benefits of Term Loans or the guarantees and security provided under the Credit Documents to the other Obligations on a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)pari passu basis.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.15, US Company, each US Borrower, UK Company, each UK Borrower, Canadian Company, each Canadian Borrower, the Administrative Agent and any each such Lender or other Person whose consent is required as provided above Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Commitment Agreement, with the effectiveness of such other documentation as Incremental Lender’s Incremental Commitment to occur on the Administrative Agent shall reasonably specify to evidence the date set forth in such Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by Commitment Agreement, which date in any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans event shall be no earlier than the then Latest Maturity Date date on which (w) 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 up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.15 shall have been satisfied, and (Bz) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Weighted Average Life to Maturity of any Incremental Term Loans Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be no shorter than increased by the remaining Weighted Average Life aggregate amount of such Incremental Commitments, (ii) Schedule 1.01(a) shall be deemed modified to Maturity reflect the revised Revolving Loan Commitments of any then outstanding Class of Term Loans;
the affected Lenders and (iii) no to the extent requested by any Incremental Term Loan shall participate on Lender, Revolving Notes will be issued, at the expense of the Borrowers, to such Incremental Lender in conformity with the requirements of Section 2.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 2.15, the Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders) (even though as a greater result thereof such new Loans (to the extent required to be maintained as LIBOR Loans or EURIBOR Loans) may have a shorter Interest Period than pro rata basis with the then outstanding Term Loans Borrowings of such Revolving Loans), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between each case to the extent necessary so that all of the Lenders providing participate in each outstanding Borrowing of Revolving Loans pro rata on the applicable Incremental Term basis of their respective Revolving Loan Commitments (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 2.15) and with the Borrower (except that any Incremental Term Loans forming an addition Borrowers being jointly and severally obligated 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 existing Class of Term Loans);
(v) subject pay to the above, respective Lenders any Incremental Term Loans shall be on terms costs of the type referred to in Section 2.11 and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loansamounts, as reasonably determined by the Borrower respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (except rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the extent preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) The terms and provisions of the Revolving Loans made pursuant to the Incremental Commitments shall be identical to the Revolving Loans made pursuant to the existing Revolving Loan Commitment; provided that the yield applicable to the Revolving Loans made pursuant to the Incremental Commitments (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Revolving Loans) shall not be greater than the applicable yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Revolving Loans made pursuant to the existing Revolving Loan Commitment (including any upfront fees or original issue discount payable to the initial Lenders hereunder) unless the Applicable Margin with respect to the Revolving Loans made pursuant to the existing Revolving Loan Commitment is amended (which shall not require the consent of any Lender) increased so as to incorporate such more restrictive provisions for the benefit of cause the then applicable yield under this Agreement on the Revolving Loans made pursuant to the existing LendersRevolving Loan Commitment to equal the yield then applicable to the Revolving Loans made pursuant to the Incremental Commitment (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Revolving Loans); and.
(vie) subject In the event the Borrowers from time to Section 1.06, no time obtain any Incremental Term Loan Commitment shall become effective Commitments under this Section 2.01(b2.15, all availability levels hereunder denominated in Dollars, Canadian Dollars, Euros or Pounds Sterling hereunder (including, without limitation, in the definitions of “Applicable Margin”, “Minimum Availability Amount” and “Payment Conditions” and in Section 10.04(a)) unless (w) no Default or Event shall be increased in proportion to the ratio of Default shall exist giving pro forma effect to such Incremental Term Commitments to the Total Revolving Loan Commitment and as in effect immediately prior to 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 Borrowers obtaining such date (Incremental Commitments and, only to for the extent a Borrowing is made avoidance of doubt, all such levels denominated in percentages shall be calculated based on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, the Total Revolving Loan Commitment after giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderCommitments.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower maymay on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request prior to the Maturity Date, the establishment of Incremental Term Loan Commitments; provided that the aggregate, cumulative amount of all the Incremental Commitments pursuant to this Section 2.20 shall not to exceed $100,000,000 from one or more Eligible Assignees, in each case, 150,000,000. Each such notice shall specify (i) the date on which the Borrower proposes that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender the Incremental Commitments shall be required to participate in any such Incremental Term Loan without its consent) and effective, which shall be subject a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such consentsnotice is delivered to the Administrative Agent, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iB) the amount of the Incremental Term Loan Commitments being requested and (which C) the identity of each Lender or other Person that the Borrower proposes become an Incremental Revolving Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment for each such Lender or other Person (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any such Person that is not a Lender must be an Eligible Assignee that is reasonably acceptable to the Administrative Agent and each Issuing Bank).
(b) The terms and conditions of any Incremental Commitment and Revolving Loans and other extensions of credit to be made thereunder (other than terms with respect to pricing, maturity and fees, to the extent set forth in the applicable Incremental Facility Agreement) shall be in a minimum amount identical to the terms and conditions of $10,000,000 the Commitments and minimum increments Revolving Loans and other extensions of $10,000,000credit made thereunder; provided that (i) no Incremental Commitment or Revolving Loan made thereunder shall mature earlier than, or remaining permitted amount orrequire any scheduled amortization or mandatory commitment reduction (other than on a pro rata basis in accordance with Section 2.08(c) of this Agreement) prior to, in each case, such lesser amount approved by the Administrative Agent)Maturity Date, (ii) whether if the Weighted Average Yield applicable to any Incremental Term Commitment and the Revolving Loans made thereunder exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date of such calculation, then the Applicable Rate then in effect for Revolving Loans hereunder shall automatically be borrowed pursuant increased so that the Weighted Average Yield applicable to such Incremental Term Loan Commitment and the Revolving Loans made thereunder is not more than 0.50% higher than that applicable to the Commitments are to be an increase in any existing Class and the Revolving Loans and other extensions of Term Loans or a new Class of Term Loans credit hereunder and (iii) notwithstanding anything to the contrary in this Section 2.20 or any Incremental Facility Agreement, unless it otherwise agrees, no Issuing Bank shall be required to issue Letters of Credit hereunder expiring after the termination date applicable to such Issuing Bank’s Commitment. For the avoidance of doubt, if the Weighted Average Yield applicable to any Incremental Commitment and the Revolving Loans made thereunder is less than the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date on which of such calculation, then the Applicable Rate then in effect for the Revolving Loans hereunder shall not be decreased as a result thereof.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Revolving Lender providing such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by and the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (wi) no Default or Event of Default shall exist have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving pro forma effect to such Incremental Term Loan Commitment Commitments and the incurrence making of Indebtedness Revolving Loans and other extensions of credit 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 be made on such date, clause (cii) is on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) Holdings and the Borrower shall be in compliance, on a pro forma basis after giving effect to and the making of Revolving Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, with the covenants set forth in Sections 6.11 and 6.12 as of the end of the fiscal quarter of Holdings for which consolidated financial statements have theretofore been most recently delivered pursuant to Section 5.01(a) or 5.01(b), (iv) the Borrower shall make any payments required to be complied withmade pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section 2.20 and (v) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, 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 give effect to the provisions of this Section 2.20.
(d) Upon effectiveness of an Incremental Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a “Lender” and a “Revolving Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders and Revolving Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders and Revolving Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Commitment, shall increase) the Commitment of such Incremental Revolving Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentages of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of the effectiveness of any Incremental Commitments, each Revolving Lender shall be deemed to have assigned to each Incremental Revolving Lender holding such Incremental Commitments, and each such Incremental Revolving Lender shall be deemed to have purchased from each Revolving Lender, at the principal amount thereof (together with accrued interest); (y) , such interests in the Revolving Loans and participations in Letters of Credit outstanding on a Pro Forma Basissuch date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Term Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitments. Any Revolving Loans outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time it will be repaid or refinanced with new Revolving Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Revolving Lenders (including the Incremental Revolving Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Revolving Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other Revolving Lenders so that, after giving effect thereto, all Revolving Loans that are Eurocurrency Loans are held by the Revolving Lenders (including the Incremental Revolving Lenders) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the incurrence minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. If there are any ABR Loans outstanding on the date of Indebtedness thereunder the effectiveness of such Incremental Commitments, such Loans shall either be prepaid on such date or refinanced on such date (assuming that subject to the satisfaction of applicable borrowing conditions) with Revolving Loans made on such commitments are fully drawn date by the Revolving Lenders (including the Incremental Revolving Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Incremental Revolving Lender will make ABR Loans by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Revolving Lender’s Incremental Commitment by the Aggregate Commitment (after giving effect to the effectiveness of the Incremental Commitments on such date) and use (ii) such funds will be applied to the prepayment of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested outstanding ABR Loans held by the Administrative Agent. Upon any increase of any existing Class of Term LoansRevolving Lenders other than the Incremental Revolving Lenders, the Lenders shall take any action as may be reasonably required and transferred by the Administrative Agent to ensure that the Borrowings of Revolving Lenders other than the Incremental Revolving Lenders, in such Class are amounts so that, after giving effect thereto, all ABR Loans will be held by the Revolving Lenders of such Class on a pro rata basis in accordance with their then-current Applicable Percentages. On the respective amount date of Term Loans the effectiveness of such Class held Incremental Commitments, the Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the principal amounts of their Revolving Loans being prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) The Administrative Agent shall notify Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.20(a) and of the effectiveness of any Incremental Commitments, in each Lendercase advising the Lenders of the details thereof and of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments deemed to have been made pursuant to Section 2.20(e).
Appears in 1 contract
Sources: Credit Agreement (Fairchild Semiconductor International Inc)
Incremental Commitments. (1) The a).The Borrower maymay on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request during the Revolving Availability Period, (i) the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Loan Commitments; provided that the aggregate amount of all the Incremental Commitments established hereunder during the term of this Agreement shall not to exceed $100,000,000 from one 100,000,000. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or more Eligible Assigneesthe Incremental Term Commitments, in each caseas applicable, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and effective, which shall be subject not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such consents, if any, as would be required in connection with an assignment of a Term Loan notice is delivered to such Person) willing to provide such Incremental Term Loans in their sole discretion the Administrative Agent and (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iB) the amount of the Incremental Revolving Commitments or Incremental Term Loan Commitments Commitments, as applicable, being requested (which shall not be in a minimum amount of less than $10,000,000 and minimum increments of $10,000,00025,000,000). Incremental Commitments may be provided by any Lender or by one or more other financial institutions identified by the Borrower; provided, that (x) any Lender requested by the Borrower to provide any Incremental Revolving Commitment or remaining permitted amount orIncremental Term Commitment may elect or decline, in each caseits sole discretion, to provide such lesser amount Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person becoming an Incremental Lender, if such Person is not already a Lender, must be an Eligible Assignee and must be approved by the Administrative Agent)Agent and, in the case of any proposed Incremental Revolving Lender and the Issuing Bank (ii) whether the Incremental Term Loans such approval not to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans unreasonably withheld or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivereddelayed).
(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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 1 contract
Sources: Credit Agreement (Shutterfly Inc)
Incremental Commitments. (1a) The So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower mayshall have the right, by written notice with the consent of, and in coordination with, the Administrative Agent, but without requiring the consent of any of the Banks (save as provided in Section 1.13(b) below), to request at any time and from time to time after the Restatement Effective Date and prior to the Maturity Date, that one or more Banks (and/or one or more other banks or financial institutions which are acceptable to each of the Administrative Agent from time and the Borrower (each an “Eligible Transferee”) and which will become Banks as provided below) provide Incremental Commitments and, subject to timethe applicable terms and conditions contained in this Agreement, request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assigneesmake Loans pursuant thereto; it being understood and agreed, in each casehowever, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but i) no such Lender Bank shall be required obligated to participate in provide an Incremental Commitment as a result of any such Incremental Term Loan without its consent) request by the Borrower, and shall be subject to until such consentstime, if any, as would such Bank 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 Section 1.13(b), such Bank shall not be required obligated to fund any Loans in connection with an assignment excess of a Term Loan its Commitment as in effect prior to giving effect to such PersonIncremental Commitment provided pursuant to Section 1.13(b) willing below, (ii) any Bank (including any Eligible Transferee who will become a Bank) may so provide an Incremental Commitment without the consent of any other Bank, (iii) each provision of Incremental Commitments on a given date pursuant to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iSection 1.13(b) the amount of the Incremental Term Loan Commitments being requested (which below shall be in a minimum aggregate amount (for all Banks (including any Eligible Transferee who will become a Bank)) of at least $25,000,000 and in integral multiples of $5,000,000 in excess thereof, (iv) the aggregate amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the all Incremental Term Loans to be borrowed Commitments provided pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans Section 1.13(b) below, shall not exceed $100,000,000 and (iiiv) all Loans made pursuant to Incremental Commitments (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)other applicable Credit Documents.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 1.13, the Borrower, the Administrative Agent and any each such Bank or other Person whose consent is required as provided above Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Bank”) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Commitment Agreement, with the effectiveness of such other documentation as Incremental Bank’s Incremental Commitment to occur on the Administrative Agent shall reasonably specify to evidence date (the “Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (dCommitment Date”) shall specify the terms of the applicable set forth in such Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by Commitment Agreement, which date in any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans event shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate date on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default 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 up-front or Event of Default shall exist giving pro forma effect arrangement fees owing to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; Administrative Agent (or any affiliate thereof)), (x) the all Incremental Loan Commitment Requirements are satisfied, (y) all other conditions set forth in clauses (athis Section 1.13(b) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (andshall have been satisfied, 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall have received documents and legal opinions promptly notify each Bank as to the effectiveness of each Incremental Commitment Agreement, and at such matters as are reasonably time, (i) the Total Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) Annex I shall be deemed modified to reflect the revised Commitments of the affected Banks and (iii) to the extent requested by any Incremental Bank, Notes will be issued, at the Borrowers’ expense, to such Incremental Bank in conformity with the requirements of Section 1.05 herein.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.13, the Borrower shall, in coordination with the Administrative Agent. Upon , repay outstanding Loans of certain of the Banks, and incur additional Loans from certain other Banks (including the Incremental Banks), in each case to the extent necessary so that all of the Banks participate in each outstanding Borrowing of Loans pro rata on the basis of their respective Commitments (after giving effect to any increase of any existing Class of Term Loans, in the Lenders shall take any action as may be reasonably required by the Administrative Agent Total Commitment pursuant to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance this Section 1.13 above) and with the Borrower being obligated to pay to the respective amount Banks any costs of Term Loans of the type referred to in Section 1.11 herein in connection with any such Class held by each Lenderrepayment and/or Borrowing.
Appears in 1 contract
Incremental Commitments. (1a) The After the Restatement Effective Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Bank 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 requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective 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 shallshall together with any then outstanding Term A Loans, unless otherwise agreed by Term A-1 Loans or Term B Loans, as applicable, form a single Class of) Term A Loans, Term A-1 Loans or 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 Administrative AgentTerm A Loans, be not less than ten Business Days after the date such notice is deliveredTerm A-1 Loans and Term B Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any (x)(A) commitments to make additional Term B Loans shall not be guaranteed by any Subsidiaries have the same terms as the Term B Loans, and shall form part of the Borrower that do not guarantee same Class as the existing Term B Loans, (B) commitments to make additional Term A Loans shall have the same terms as the Term A Loans, and shall be secured on a pari passu basis by form part of the same Collateral Class as the Term A Loans (and no shall only be permitted to the extent they are primarily syndicated to regulated banks in the primary syndication thereof) and (C) commitments to make additional collateralTerm A-1 Loans shall have the same terms as the Term A-1 Loans, and shall form part of the same Class as the Term A-1 Loans (and shall only be permitted to the extent they are primarily syndicated to regulated banks in the primary syndication thereof) securing and (y) Incremental Revolving Facility Commitments shall have the same terms as the then existing Obligations;outstanding 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 latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of all then outstanding Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to this Section 2.21 shall rank equally and ratably in right of security with the Term A Loans and Term B Loans,
(A1) other than with respect to Permitted Earlier Maturity Debt, the Maturity Date final maturity date of any Incremental Term Loans that are not additional Term A Loans, additional Term A-1 Loans, additional Term B Loans or Incremental Term A Loans shall be no earlier than the then Latest Term B Maturity Date and (B) in effect at the Weighted Average Life to Maturity date of any incurrence of such Incremental Term Loans shall be no shorter than the remaining Weighted Average Life and (2) except as to Maturity of any then outstanding Class of Term Loans;
pricing, amortization, final maturity date and participation in mandatory prepayments (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rateswhich shall, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided thatLenders in their sole discretion), shall have the terms applicable to any such Incremental Term Loans that (except as expressly permitted above and except for covenants or other provisions applicable only to periods after determined by the then Latest Maturity DateBorrower in good faith) are notno more restrictive, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the Term B Loans or such other terms applicable as shall be reasonably satisfactory to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.,
Appears in 1 contract
Sources: Credit Agreement (Centurylink, Inc)
Incremental Commitments. (1a) The At any time prior to the repayment in full of all Loans and the termination of all Commitments hereunder, the Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request that one or more Persons (which may include the then-existing Lenders; provided that no Lender shall be obligated to provide such Incremental Commitments and may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loan Commitments under this paragraph (a), it being understood that (x) if such Incremental Commitment is to be provided by a Person that is not to exceed $100,000,000 from one or more Eligible Assigneesalready a Lender, the Administrative Agent and, in the case of Incremental Revolving Credit Commitments, each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender Issuing Bank shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject have consented to such consents, if any, as Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in connection with the event of an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion Person (such Lendersconsent not to be unreasonably withheld, conditioned or delayed) and (y) the “Incremental Term Loan Lenders”). Such notice shall set forth (i) Borrower may agree to accept less than the amount of the any proposed Incremental Term Loan Commitment. The minimum aggregate principal amount of Incremental Commitments being requested (which established pursuant to any Incremental Amendment shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, (or remaining permitted amount or, in each case, such lesser amount approved as may be agreed by the Administrative Agent), (ii) whether . In no event shall the aggregate amount of any Incremental Term Loans to be borrowed Commitments established at any time pursuant to this clause (a) exceed the Maximum Incremental Amount at such time. Incremental Term Commitments shall be established pursuant to an amendment, supplement or amendment and restatement (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Commitments are Documents, executed by the Loan Parties, each Person providing an Incremental Commitment and the Administrative Agent. Each Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be an increase necessary or appropriate, in any existing Class the reasonable opinion of Term Loans or a new Class of Term Loans the Borrower and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, to (x) effect the provisions of this Section 2.18 or (y) to the extent the terms and conditions of the Incremental Commitments are more favorable to the Lenders than comparable terms existing in the Loan Documents, to bring the terms and conditions of the existing Loans in line with the terms and conditions of the Incremental Loans necessary to achieve fungibility. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.18 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in clauses (a) and (c) of Section 4.02 shall have been satisfied and (ii) the Administrative Agent shall have received documents from the Borrower substantially consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be not less than ten Business Days after deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such notice is delivered).
Limited Condition Acquisition Agreement, (2) The Loan Partiesas of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and any other Person whose consent is required as provided above the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment.
(b) The Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitments of such Incremental Term Loan CommitmentLender and/or Incremental Revolving Lender. Each Additional Credit Extension Incremental Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Credit Commitments; provided that:
(i) the any commitments to make Incremental Term Loans in the form of additional Initial Term B Loans shall not be guaranteed by any Subsidiaries have the same terms (other than upfront fees) as the Initial Term B Loans, and shall form part of the Borrower that do not guarantee same Class of Initial Term B Loans, any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the existing Initial Term B Loans and (“Other Incremental Term Loans”) shall be secured on a pari passu basis by the same Collateral subject to compliance with clauses (and no additional collateraliii) securing the then existing Obligations;through (vii) below,
(ii) any Incremental Revolving Credit Commitments shall have the same terms (Aother than upfront fees and any arrangement or similar fees payable in connection with such Incremental Revolving Credit Commitments) as the Revolving Credit Commitments in effect on the Effective Date, and shall form part of the same Class of Revolving Credit Commitments and Initial Revolving Loans; provided that, if required to establish Incremental Revolving Credit Commitments, the pricing, interest rate margins, rate floors and fees (other than any upfront fees and any arrangement or similar fees payable in connection with such Incremental Revolving Credit Commitments) applicable to the Revolving Credit Commitments in effect on the Effective Date may be increased such that the Incremental Revolving Credit Commitments and Revolving Credit Commitments in effect on the Effective Date shall form part of the same Class of Revolving Credit Commitments and Initial Revolving Loans;
(iii) the Maturity Date of any Other Incremental Term Loans and Incremental Revolving Loans incurred pursuant to clause (a) of this Section 2.18 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans;
(iv) the final maturity date of any such Other Incremental Term Loans (other than with respect to any Permitted Inside Maturity Debt or Incremental Term A Loans) shall be no earlier than the then Latest Maturity Date applicable to Initial Term B Loans, and, except as to pricing, amortization and final maturity date (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), the Other Incremental Term Loans shall have terms, to the extent not consistent with the Initial Term B Loans or otherwise permitted under this Section 2.18(b), including by clause (vii) hereof, that , at the option of the Borrower, either (x) reflect market terms and conditions (taken as a whole) at the time of incurrence (as determined by the Borrower in good faith) of such Other Incremental Term Loans or the Incremental Term Loan Commitments with respect thereto, (y) are not materially more restrictive to the Borrower (as determined by the Borrower in good faith), when taken as a whole, than the terms of the Initial Term B Loans (except for covenants or other provisions applicable only to periods after the Initial Term B Facility Maturity Date) or (z) if neither of the requirements in clause (x) or (y) are satisfied, are otherwise reasonably acceptable to the Administrative Agent; provided that any Incremental Term A Facility may, to the extent agreed by the relevant Lenders and the Borrower, have covenants and events of default that, taken as a whole, are materially more restrictive than those applicable to the Initial Term B Loans as determined in good faith by the Borrower (in consultation with the Administrative Agent) so long as any such covenants and events of default are solely for the benefit of the relevant Lenders providing such Incremental Term A Loans,
(v) other than with respect to Permitted Inside Maturity Debt and Incremental Term A Loans, 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 any then outstanding Class of the Initial Term B Loans;,
(iiivi) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;Commitments or Incremental Revolving Credit Commitments,
(ivvii) Other Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may not be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and secured by any asset of 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 (or its Subsidiaries other than upfront feesthe Collateral,
(viii) as the applicable existing Class of Term Loans);
interest rate margins, fees and, subject to clauses (iv) and (v) subject above with respect to the aboveOther Incremental Term Loans, amortization schedule applicable to any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such applicable Incremental Term LoanLoan Lenders; provided thatthat in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower prior to the first anniversary of the Effective Date under any Incremental Term Loan Commitment is higher than the All-in Yield for the outstanding Initial Term B Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the terms applicable to any Applicable Margins for the Initial Term B Loans at the time such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive incurred shall be increased to the Borrower and its Restricted Subsidiaries, than extent necessary so that the terms applicable All-in Yield for the Initial Term B Loans is equal to the then outstanding Commitments All-in Yield for such Incremental Term Loans minus 50 basis points (such adjustment, the “MFN Adjustment”), and
(ix) notwithstanding anything to the contrary, to the extent agreed to by the relevant Lenders and the Borrower, any Incremental Amendment with respect to Incremental Term A Loans, as reasonably determined by the Borrower (except to the extent applicable, may include one or more financial maintenance covenants that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions are solely for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Lenders with such Incremental Term Loan Commitment A Loans, as applicable, and that may be amended or waived in any manner solely by Lenders with a percentage of such Incremental Term A Loans, as applicable, specified in such Incremental Amendment and a breach of which would allow such Lenders to terminate such Incremental Term A Loans, as applicable, and declare all amounts owing thereunder to be immediately due and payable (and any such breach of such financial maintenance covenants shall become effective under this Section 2.01(b) unless (w) no Default or not constitute an Event of Default for purposes of any Term Loans (other than any such Incremental Term A Loans) unless and until the outstanding principal amount of such Incremental Term A Loans, as applicable, were accelerated or terminated as a result thereof), with all such provisions described above to be reasonably satisfactory to the Administrative Agent. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall exist be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.18 shall be deemed “Loan Documents” hereunder. 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 Incremental Term Loans and Incremental Term A Loans), when originally made, are included in each Borrowing of the outstanding Initial Term B Loans on a pro rata basis, and (ii) all Revolving Loans in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Loans on a pro rata basis. Upon each increase in the establishment of any Incremental Revolving Credit Commitments pursuant to this Section 2.18, each Lender immediately prior to such increase will automatically and without further action be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitments in respect of such increase, and each such Lender providing a portion of the Incremental Revolving Credit Commitments will automatically and without further action be deemed to have assumed, a portion of such existing Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such Lender providing Incremental Revolving Credit Commitments) will equal such Lender’s Applicable Percentage of the Revolving Credit Commitments and if, on the date of such increase, there are any Initial Revolving Loans outstanding, such Initial Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitments either be prepaid from the proceeds of additional Initial Revolving Loans made hereunder or assigned to Lender providing Incremental Revolving Credit Commitments (in each case, reflecting such Incremental Revolving Credit Commitments, such that Initial Revolving Loans are held ratably in accordance with each Lender’s pro forma rata share, after giving effect to such Incremental Term Loan Commitment increase), which prepayment or assignment shall be accompanied by accrued interest on the Initial Revolving Loans being prepaid. The Administrative Agent and the incurrence of Indebtedness thereunder Lenders hereby agree that the minimum borrowing, pro rata borrowing and use of proceeds therefrom; (x) the conditions set forth pro rata payment requirements contained elsewhere in clauses (a) and (b) of Section 5.02 are satisfied whether or this Agreement shall not a Credit Extension is made on such date (and, only apply to the extent transactions effected pursuant to the immediately preceding sentence. If there is a new Revolving Borrowing is made on the date of effectiveness of such dateIncremental Revolving Credit Commitments, clause (c) is required to be complied with); (y) on a Pro Forma Basis, the Revolving Lenders after giving effect to such Incremental Term Revolving Credit Commitments shall make such Revolving Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with Section 2.01(a). Notwithstanding anything to the respective amount of Term Loans of such Class held by each Lendercontrary, this Section 2.18 shall supersede any provisions in Section 2.17 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Maxlinear Inc)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 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 incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment established for purposes of financing any Permitted Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Acquisition, New Project, acquisition or similar Investment is entered into) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided that each Incremental Term Lender and each Incremental Revolving Facility Lender providing a commitment shall be subject to the approval of the Administrative Agent (such and, solely in the case of Incremental Revolving Facility Lenders, 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 Term Loan Lenders”)Lender is an existing Lender or such Incremental Revolving Facility Lender is an existing 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 established (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective effective, (which shalliii) [reserved] and (iv) in the case of Incremental Term Loan Commitments, unless otherwise agreed by whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term A Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredTerm A Loans (“Other Term Loans”).
(2b) The Loan PartiesBorrower, the Administrative Agent (if applicable) and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any commitments to make additional Term A Loans and/or any Incremental Revolving Facility Commitments shall have the Incremental 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 not be guaranteed by any Subsidiaries rank pari passu in right of security with the Liens on the Collateral securing the Term A Loans or, at the option of the Borrower Borrower, be unsecured (provided that do not guarantee the existing if such Other Term Loans and shall are unsecured, such Other Term Loans will be secured on established as a pari passu basis by the same Collateral (and no additional collateral) securing separate facility from the then existing Obligations;Term Loans subject to a Permitted Junior Intercreditor Agreement),
(iiiii) (A) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest 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 other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Term A Loans (except to the extent such covenants and other terms apply solely to any period after the Term A Facility Maturity Date or are otherwise reasonably acceptable to the Administrative Agent, it being understood that, to the extent 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 Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term A Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term 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 aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), the Incremental Revolving Facility Commitments and Incremental Revolving Loans shall have the same terms as the Initial Revolving Loans,
(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 and payment with the Term A Loans, if the All-in Yield in respect of any such Incremental Other Term LoanLoan exceeds the All-in Yield in respect of such Term A Loans on the Closing Date 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 A 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 terms extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms 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 A 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 A Loans then outstanding Commitments and Loans, as reasonably determined by outstanding,
(viii) 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 Borrower (except to the extent that this Agreement is amended (which shall not require the consent of Term A Loans in any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)mandatory prepayment hereunder; and
(viix) subject (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 that do not constitute 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 1.069.08(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 “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower (or, if such Incremental Term Loan Commitment or Incremental 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 the incurrence of Indebtedness thereunder and use of proceeds be continuing or would result 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions as other customary closing certificates and documentation to such matters as are reasonably requested the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Security Documents and title date-down and modification endorsements, which, in the case of any such amendments and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans 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 Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall 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 of a different Class), 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, 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 apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held 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) 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 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 final maturity date of any Extended Term Loans shall be no earlier than the 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 same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank, such terms as shall be reasonably satisfactory to such Issuing Bank, (v) any Extended 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) 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 R
Appears in 1 contract
Sources: Credit Agreement (Open Lending Corp)
Incremental Commitments. (1a) The Borrower mayCompany shall have the right, by written notice in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of the Administrative Agent or the Lenders (except, in either case, as otherwise provided in this Section 2.14), to request at any time and from time to time after the Sixth Amendment Effective Date and prior to the Final Maturity Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment, 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 from time Agent, the Company and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to time, request Incremental Term fund any Revolving Loans in excess of its Revolving Loan Commitments not to exceed $100,000,000 from one Commitment (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its RL Percentage, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14 (it being understood and agreed that is any Lender that does not agree to provide any such Incremental Commitment within ten Business Days after a Farm Credit Lender request therefor (which, in each case, or such shorter period as may include any existing Lender (but no such Lender shall be required to participate provided in any such request for Incremental Term Loan without its consentCommitments) and shall be subject deemed to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing have declined to provide any such Incremental Term Loans Commitment except to the extent such Lender thereafter executes and delivers an Incremental Commitment Agreement in their sole discretion accordance with the terms hereof), (such Lendersii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of the Administrative Agent or any other Lender; provided that any Person that is not a Lender prior to the effectiveness of its Incremental Commitment shall require the consent of the Administrative Agent, and each Issuing Lender and the “Swingline Lender (which consents shall not be unreasonably withheld, conditioned or delayed) to provide an Incremental Term Loan Lenders”). Such notice shall set forth Commitment pursuant to this Section 2.14, (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.14 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Commitments permitted to be provided pursuant to this Section 2.14 after the Sixth Amendment Effective Date shall not exceed in the aggregate $50,000,00075,000,000, (v) the Company shall not increase the Total Revolving Loan Commitment pursuant to this Section 2.14 more than twofour times, (vi) if the Applicable Margins with respect to Revolving Loans to be borrowed incurred pursuant to an Incremental Commitment shall be higher in any respect than those applicable to any other Revolving Loans, the Applicable Margins for the other Revolving Loans and extension of credit hereunder shall be automatically increased as and to the extent needed to eliminate any deficiencies in accordance with the definition of “Applicable Margin” contained herein (such increase, the “Additional Margin”), (vii) all Revolving Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under the relevant Guaranties, on a pari passu basis will all other Loans (and related Obligations) secured by each relevant Security Document and guaranteed under each relevant Guaranty, and (viii) each Lender (including any Person which is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 2.01(b) andSection 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.14, (I) the Company, each other Borrower, each Subsidiary Guarantor, the Administrative Agent, the Swingline Lender and each Issuing Lender (if the consent of the Swingline Lender and each Issuing Lender areis required pursuant to Section 2.14(a)(ii)) and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Borrowers and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the Incremental Commitment provided therein to occur on the date set forth in such Incremental Term Loan Commitments are to be an increase Commitment Agreement, which date in any existing Class of Term Loans or a new Class of Term Loans and (iii) event shall be no earlier than the date on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.14 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Term Loan Commitments are requested to become effective Commitment Agreement shall have been satisfied) and (which shallII) the Company, unless otherwise agreed by the Administrative Agenteach other Borrower, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Partieseach Subsidiary Guarantor, the Administrative Collateral Agent and any other Person whose consent is required each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an and the Collateral Agent such additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments and any Additional Credit Extension Amendment and such other documentation as Margin are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Term Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment. Each Additional Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.14, each Borrower shall, in coordination with the terms Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing Lenders); and
Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateTotal Revolving Loan Commitment pursuant to this Section 2.14) and use with the Borrowers being obligated to pay to the respective Lenders any costs of proceeds therefrom, the Borrower would be type referred to in compliance Section 2.11 in connection with Section 8.11 and any such repayment and/or Borrowing.
(ze) At 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 time of any existing Class provision of Term LoansIncremental Commitments pursuant to this Section 2.14, all dollar thresholds included in any determination made with respect to Excess Availability shall be increased automatically in an amount equal to the Lenders shall take any action as may be reasonably required percentage by which the Administrative Agent to ensure that Incremental Commitments increase the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderTotal Revolving Loan Commitment.
Appears in 1 contract
Sources: Abl Credit Agreement (Ciena Corp)
Incremental Commitments. (1a) The Borrower mayshall have the right, by written notice in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of the Administrative Agent or the Lenders (except, in either case, as otherwise provided in this Section 2.14), to request at any time and from time to time after the Effective Date and prior to the Final Maturity Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment, 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 from time and the Borrower an Incremental Commitment Agreement as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to time, request Incremental Term fund any Revolving Loans in excess of its Revolving Loan Commitments not to exceed $100,000,000 from one Commitment (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its RL Percentage, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14; provided that is a Farm Credit the Lenders shall have at least 10 Business Days following the Borrower’s request for Incremental Commitments to decide whether or not to provide any such Incremental Commitments (and, to the extent that any Lender (whichfails to respond within such 10 Business Day period, in each case, may include any existing Lender (but no such Lender shall be required deemed to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing have rejected to provide such an Incremental Term Loans in their sole discretion Commitment), (such Lendersii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of the Administrative Agent or any other Lender; provided that any Person that is not a Lender prior to the effectiveness of its Incremental Commitment shall require the consent of the Administrative Agent, each Issuing Lender and the “Swingline Lender (which consents shall not be unreasonably withheld) to provide an Incremental Term Loan Lenders”). Such notice shall set forth Commitment pursuant to this Section 2.14, (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.14 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, 25,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Commitments permitted to be provided pursuant to this Section 2.14 shall not exceed in the aggregate $200,000,000, (v) the Borrower shall not increase the Total Revolving Loan Commitment pursuant to this Section 2.14 more than five times, (vi) if the Applicable Margins with respect to Revolving Loans to be borrowed incurred pursuant to an Incremental Commitment shall be higher in any respect than those applicable to any other Revolving Loans, the Applicable Margins for the other Revolving Loans and extension of credit hereunder shall be automatically increased as and to the extent needed to eliminate any deficiencies in accordance with the definition of “Applicable Margin” contained herein (such increase, the “Additional Margin”), (vii) all Revolving Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under the relevant Guaranties, on a pari passu basis will all other Loans (and related Obligations) secured by each relevant Security Document and guaranteed under each relevant Guaranty, and (viii) each Lender (including any Person which is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.14, (I) Holdings, the Borrower, each Subsidiary Guarantor, the Administrative Agent, the Swingline Lender and each Issuing Lender (if the consent of the Swingline Lender and each Issuing Lender are required pursuant to Section 2.14(a)(ii)) and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Borrower and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the Incremental Commitment provided therein to occur on the date set forth in such Incremental Term Loan Commitments are to be an increase Commitment Agreement, which date in any existing Class of Term Loans or a new Class of Term Loans and (iii) event shall be no earlier than the date on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.14 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Term Loan Commitments are requested to become effective Commitment Agreement shall have been satisfied) and (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2II) The Loan PartiesHoldings, the Administrative Borrower, each Subsidiary Guarantor, the Collateral Agent and any other Person whose consent is required each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an and the Collateral Agent such additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments and any Additional Credit Extension Amendment and such other documentation as Margin are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Term Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment. Each Additional Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.14, the terms Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing Lenders); and
Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateTotal Revolving Loan Commitment pursuant to this Section 2.14) and use of proceeds therefrom, with the Borrower would be being obligated to pay to the respective Lenders any costs of the type referred to in compliance Section 2.11 in connection with Section 8.11 and any such repayment and/or Borrowing.
(ze) At 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 time of any existing Class provision of Term LoansIncremental Commitments pursuant to this Section 2.14, all dollar thresholds included in any determination made with respect to Excess Availability shall be increased automatically in an amount equal to the Lenders shall take any action as may be reasonably required percentage by which the Administrative Agent to ensure that Incremental Commitments increase the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderTotal Revolving Loan Commitments.
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Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments additional Commitments, in an aggregate amount not to exceed $100,000,000 the Incremental Facility Amount at such time, from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Persons (which, in each case, which may include any existing Lender (but no willing to provide the same, in its own discretion) that will become Lenders; provided that each such Lender shall be required to participate in any such Incremental Term Loan without its consent) and Person, if not already a Lender, shall be subject to such consentsthe approval of the Administrative Agent and the Issuing Lenders (which approvals shall not be unreasonably withheld, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”delayed or conditioned). Such notice shall set forth (i) the amount of the Incremental Term Loan additional Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Facility Amount) and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan additional Commitments are requested to become effective (which shallshall not be less than 10 Business Days or more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above providing an additional Commitment shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Commitment of such Person.
(c) Each Additional Credit Extension Amendment of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Commitments pursuant to Section 5.05(a), the outstanding Loans (if any) are held by the Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by (i) requiring the outstanding Loans to be prepaid with the proceeds of a new Borrowing, (ii) causing non-increasing Lenders to assign (at par, with accrued interest and fees) portions of their outstanding Loans to Persons that are becoming Lenders (or increasing their Commitments), or (iii) any combination of the foregoing. Any prepayment or assignment described in this clause Section 5.05(c) shall be subject to Section 5.11, but shall otherwise be without premium or penalty.
(d) shall specify Notwithstanding the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and foregoing, no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans increase in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 5.05 unless (wi) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and on the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) date thereof, the conditions set forth in clauses Section 7.02(b) (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, without giving effect to the parenthetical therein and with references therein to a Borrowing being deemed to be references to such Incremental Term Loans increase, and with Section 6.05(a) being deemed for this purpose to refer to the most recent financial statements delivered pursuant to Sections 8.03(a) and 8.03(b), provided that, notwithstanding the foregoing, for purposes of this Section 5.05(d) the provisions of Section 6.05(b) may be deemed, if so agreed by the Borrower and the incurrence of Indebtedness thereunder (assuming that Person or Persons providing such commitments are fully drawn on such date) and use of proceeds therefromincrease, to include a COVID-19 related exception in the manner agreed by the Borrower would and such Person or Persons) shall be in compliance with Section 8.11 satisfied and no Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (zii) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested (unless otherwise agreed by the Administrative Agent. Upon any increase ), board resolutions (or reaffirmation of any existing Class the continuing effectiveness of Term Loans, previously adopted board resolutions applicable thereto) and certificates consistent with those delivered on the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderEffective Date under Sections 7.01(b) and 7.01(e).
Appears in 1 contract
Sources: Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.)
Incremental Commitments. (1a) The At any time prior to the Latest Maturity Date, the Borrower maymay from time to time, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request that one or more Persons (which may include the then-existing Lenders; provided that no Lender shall be obligated to provide such Incremental Commitments and may elect or decline in its sole discretion to provide Incremental Commitments) establish one or more Incremental Revolving Credit Commitments and/or one or more Incremental Term Loan Commitments under this paragraph (a), it being understood that (x) if such Incremental Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld or delayed) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment. The minimum aggregate principal amount of any Incremental Commitment shall be $5,000,000 (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum, as of any date of determination, of (i) the greater of (x) $100,000,000 250,000,000 and (y) 5075% of Consolidated EBITDA for the most recently ended Test Period for which financial statements are available (calculated on a Pro Forma Basis) as of such date, (ii) the aggregate principal amount of (x) voluntary prepayments of the Term Loans and any Incremental Equivalent Debt and purchases and repurchases of Term Loans made pursuant to Section 9.04(f) and (y) voluntary prepayments of any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Commitments with respect thereto, in each case under clauses (x) and (y), other than prepayments from proceeds of long-term Indebtedness and occurring on or prior to such date and (iii) an unlimited amount so long as on the date of incurrence of such Incremental Commitment, in the case of this clause (iii), the First Lien Net Leverage Ratio does not exceed 1.802.25 to 1.00 on a Pro Forma Basis (but without giving effect to any amount incurred substantially simultaneously or contemporaneously therewith under clause (i) or clause (ii) above) (in the case of any Incremental Revolving Credit Commitments, calculated assuming the full amount available thereunder is drawn) (with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute Indebtedness secured on a pari passu basis with the Initial Term B Facility for the purposes of calculating the First Lien Net Leverage Ratio even though not so secured); provided that (A) the cash and Permitted Investments constituting the proceeds received in respect of such Incremental Loans or Incremental Commitments shall not be included as Unrestricted Cash and Cash Equivalents for purposes of determining the First Lien Net Leverage Ratio pursuant to this clause (iii), (B) the Borrower shall be deemed to have utilized the amounts under clause (ii) prior to using the amounts under clause (i) or (iii) and the Borrower shall be deemed to have utilized the amounts under clause (iii) (to the extent compliant therewith) prior to utilization of the amounts under clause (i), and (C) if any Indebtedness is intended to be incurred under clause (iii) and clause (i) or clause (ii) in a single transaction or series of related transactions, (a) the incurrence of the portion of such Indebtedness to be incurred or implemented under clause (iii) shall be calculated first without giving effect to any Indebtedness to be incurred under clause (i) or clause (ii), but giving full pro forma effect to the use of proceeds of the entire amount of such Indebtedness and (b) the incurrence of the portion of such Indebtedness to be incurred or implemented under clause (i) and/or clause (ii) shall be calculated thereafter. The Borrower may arrange for one or more Eligible AssigneesPersons, in each case, that is a Farm Credit Lender (which, in each case, which may include any existing Lender (but no such Lender shall be required Lenders, to participate in any such extend Incremental Revolving Credit Commitments, provide Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Commitments or increase their applicable existing Term Loans or Revolving Credit Commitments in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) an aggregate amount equal to the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount Commitment. In the event that one or more of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans Persons offer to be borrowed pursuant to enter into such Incremental Term Loan Commitments are or Incremental Revolving Credit Commitments, as applicable, and such Persons, the Loan Parties, the Borrower and the Administrative Agent agree as to be an increase in any existing Class the amount of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested or Incremental Revolving Credit Commitments, as applicable, to become effective be allocated to the respective Persons making such offers and the fees (which shallif any) to be payable by the Borrower in connection therewith, unless otherwise agreed such Persons and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. Each 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 opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loan Commitments shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Financial Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied and (ii) the Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be not less than ten Business Days after deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such notice is delivered).
Limited Condition Acquisition Agreement, (2) The Loan Partiesas of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, and (3) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment. Nothing contained in this Section 2.17 shall constitute, or otherwise be deemed to be, a commitment on the part of any other Person whose consent is required as provided above Lender to provide or increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) The Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Incremental Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Credit Commitments; provided that:
(i) the any commitments to make Incremental Term Loans in the form of additional Initial Term B Loans shall not be guaranteed by any Subsidiaries have the same terms as the Initial Term B Loans, and shall form part of the Borrower that do not guarantee the existing same Class of Initial Term B Loans and any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term B Loans (“Other Incremental Term Loans”) shall be secured on a pari passu basis by the same Collateral subject to compliance with clauses (and no additional collateralii) securing the then existing Obligations;through (vi) below,
(ii) (A) the Maturity Date of any Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.17 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(iii) the final maturity date of any such Other Incremental Term Loans (other than any bridge financing converting to, or intended to be refinanced by, Indebtedness that complies with the maturity date requirement in this clause (iii)) shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (Bwhich 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 terms, to the extent not consistent with the Initial Term B Loans, shall not be more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than any bridge financing converting to, or intended to be refinanced by, Indebtedness that complies with the Weighted Average Life to Maturity requirement in this clause (iv)) shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;with the longest remaining Weighted Average Life to Maturity,
(ivv) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Credit Commitments,
(except that any vi) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Credit Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront fees) as the applicable existing Class of Term Loans);Collateral, and
(vvii) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the above, any Incremental Term Loans shall be on terms and made pursuant to documentation to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders providing such or Incremental Term LoanLoan Lenders; provided thatthat in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower prior to that date that is twelve (12) months after the Amendment No. 1 Effective Date is higher than the All-in Yield for the outstanding Initial Term B Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the terms applicable to any effective interest rate margin for the Initial Term B Loans at the time such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except incurred shall be increased to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions All-in Yield for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Initial Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 B Loans is made on such date (and, only equal 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 All-in Yield for such Incremental Term Loans minus 50 basis points. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incurrence Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of Indebtedness thereunder (assuming that this Section 2.17 and any such commitments are fully drawn on such date) Collateral and use of proceeds therefrom, the Borrower would other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in compliance with Section 8.11 and (z) writing by the Administrative Agent shall have received documents and/or the Collateral Agent with the Borrower’s consent (not to be unreasonably withheld) and legal opinions as furnished to such matters as are reasonably requested by the other parties hereto. Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the Borrowings outstanding applicable Class of such Class are held by the Lenders of such Class Term Loans on a pro rata basis basis, and (ii) all Revolving Loans in accordance with respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the respective amount applicable Class of Term outstanding Revolving Loans of such Class held by each Lenderon a pro rata basis. Notwithstanding anything to the contrary, this Section 2.17 shall supersede any provisions in Section 2.15 or Section 9.02 to the contrary.
Appears in 1 contract
Incremental Commitments. (1a) The At any time following the repayment in full of the Interim Term Facility (whether outstanding under this Agreement or the Interim Term Loan Assumption Agreement, as applicable) and prior to the Latest Maturity Date, the Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request Incremental Term Loan Commitments not to exceed $100,000,000 from that one or more Eligible Assignees, in each case, that is a Farm Credit Lender Persons (which, in each case, which may include any the then-existing Lender (but Lenders; provided that no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing obligated to provide such Incremental Commitments and may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loans under this paragraph (a), it being understood that (x) if such Incremental Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment; provided that the minimum aggregate principal amount accepted shall equal the lesser of (i) $10,000,000 or (ii) the aggregate Incremental Commitments proposed to be provided in response to the Borrower’s request. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000, (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum of (i) $150,000,000, (ii) the aggregate principal amount of (x) voluntary prepayments of the Term Loans and any Incremental Equivalent Debt and (y) voluntary prepayments of any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Commitments with respect thereto, in each case under clauses (x) and (y), other than prepayments from proceeds of long-term Indebtedness and (iii) any additional amount so long as on the date of incurrence of such Incremental Commitment (subject to the terms of Section 2.17(b) below), in the case of this clause (iii), the First Lien Leverage Ratio does not exceed 2.50 to 1.00 on a Pro Forma Basis (assuming the full amount available thereunder is drawn) (with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute Indebtedness secured on a pari passu basis with the Term Facilities for the purposes of calculating the First Lien Leverage Ratio even if unsecured). The Borrower shall be deemed to have utilized the amounts under clause (ii) prior to using the amounts under clause (i) or (iii) and the Borrower shall be deemed to have utilized the amounts under clause (iii) (to the extent compliant therewith) prior to utilization of the amounts under clause (i). The Borrower may arrange for one or more banks or other financial institutions, which may include any Lenders, to extend Revolving Credit Commitments, provide Incremental Term Loans or increase their applicable existing Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) an aggregate amount equal to the amount of the Incremental Commitment. In the event that one or more of such Persons offer to enter into such Revolving Credit Commitments, and such Persons, the Loan Parties, the Borrower and the Administrative Agent agree as to the amount of such Revolving Credit Commitments to be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Borrower in connection therewith, such Persons and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement or Incremental Term Loan Commitments being requested Amendment, as applicable. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (which shall be an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in a minimum amount of $10,000,000 such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the . Each Incremental Term Loans to be borrowed pursuant to such Assumption Agreement and each Incremental Term Loan Commitments are Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be an increase necessary or appropriate, in any existing Class the reasonable opinion of Term Loans or a new Class of Term Loans the Borrower and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Financial Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied and (ii) the Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be not less than ten Business Days after deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such notice is delivered).
Limited Condition Acquisition Agreement, (2) The Loan Partiesas of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment. Nothing contained in this Section 2.17 shall constitute, or otherwise be deemed to be, a commitment on the part of any other Person whose consent is required as provided above Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) The Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Credit Commitments; provided that:
(i) the any commitments to make Incremental Term Loans in the form of additional Initial Term B-1 Loans shall not be guaranteed by any Subsidiaries have the same terms as the Initial Term B-1 Loans, and shall form part of the Borrower that do not guarantee same Class of Initial Term B-1 Loans, (x) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the existing Initial Term B-1 Loans and (“Other Incremental Term Loans”) shall be secured on a pari passu basis by the same Collateral subject to compliance with clauses (and no additional collateralii) securing the then existing Obligations;through (vi) below,
(ii) the Other Incremental Term Loans incurred pursuant to clause (Aa) of this Section 2.17 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(iii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (Bwhich 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 terms, to the extent not consistent with the Initial Term B-1 Loans, shall not be more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term B-1 Loans,
(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 any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;with the longest remaining Weighted Average Life to Maturity,
(ivv) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Credit Commitments,
(except that any vi) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Credit Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront fees) as the applicable existing Class of Term Loans);Collateral, and
(vvii) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the above, any Incremental Term Loans shall be on terms and made pursuant to documentation to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.or
Appears in 1 contract
Sources: Credit Agreement (Cavium, Inc.)
Incremental Commitments. (1a) The Borrower may, may by written notice to the Administrative Agent from time elect to timeseek (w) commitments (“Additional Revolving Commitments”) to increase the Revolving Facility Commitments of any Class, request Incremental (x) commitments (“Additional Term Loan Commitments not Commitments”) to exceed $100,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, increase the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the aggregate principal amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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, (y) commitments (“Other Term A Loan Commitments”) to establish a Class of Other Term A Loans or (z) commitments (“Other Term B Loan Commitments”) to establish a new Class of Other Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term B Loans; provided that:
(i) the aggregate amount of all Incremental Term Loans Commitments after the Closing Date, together with all Incremental Equivalent Debt incurred after the Closing Date and outstanding at such time, shall not be guaranteed by any Subsidiaries of exceed the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing ObligationsIncremental Amount;
(ii) any such increase or any new Class shall be in an aggregate amount of $25,000,000 or any whole multiple of $5,000,000 in excess thereof; 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 preceding clause (i);
(iii) no existing Lender shall be required to provide any Incremental Commitments;
(iv) except as to amortization and final maturity date (which shall, subject to clauses (vii), (viii) and (x) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term A Loans shall have (x) the same terms as the Term A Loans (including with respect to pricing) or (y) terms that are less favorable to the Incremental Term Lenders providing such Other Term A Loans than the terms of the Term A Loans in the reasonable determination of the Administrative Agent, except to the extent such provisions apply only after the Term A Facility Maturity Date or such other provisions apply equally for the benefit of the Term A Lenders (including with respect to pricing) and, to the extent applicable (other than pricing and amortization), the Revolving Facility Lenders;
(v) except as to pricing, amortization and final maturity date (which shall, subject to clauses (vii), (viii), (x) and (xii) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term B Loans shall have (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent; provided that (a) the covenants and other terms applicable to Other Term B Loans shall not be materially more favorable (when taken as a whole) to the Incremental Term Lenders providing the Other Term B Loans than those applicable to any Facility then outstanding (except to the extent such terms apply only after the Latest Maturity Date or such covenants or other terms apply equally for the benefit of the other Lenders) and (b) at the sole discretion of the Borrower and the Incremental Term Lenders providing the Other Term B Loans, any prepayment premium for the existing Term B Loans may be increased or the period applicable thereto may be extended to be the same as Other Term B Loans;
(vi) as of each date of borrowing under any Additional Term Loan Commitments, Other Term A Loan Commitments or Other Term B Loan Commitments or effectiveness of Additional Revolving Commitments, (A) each of the Maturity Date conditions set forth in Section 4.01 shall be satisfied and (B) Parent shall be in Pro Forma Compliance (assuming all Revolving Facility Commitments are fully drawn and without netting the cash proceeds of any Incremental Commitments being funded on such date in calculating the Total Secured Net Leverage Ratio);
(vii) the final maturity date of any Other Term Loans A Loan shall be no earlier than the then Latest Term A Facility Maturity Date Date, and the final maturity date of any Other Term B Loan shall be no earlier than the Term B Facility Maturity Date;
(Bviii) the Weighted Average Life to Maturity of any Incremental Other Term Loans A Loan shall not be no shorter than the remaining Weighted Average Life to Maturity of the existing Term A Loans, and the Weighted Average Life to Maturity of any then outstanding Class Other Term B Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term B Loans;
(iiiix) (A) the security interest and guaranties benefiting the Incremental Term Loans will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to any Incremental Term Loans unless such Person is a Loan Party and (C) no Incremental Term Loan Loans will be secured by any property that does not constitute Collateral under the existing Facilities;
(x) the Other Term A Loans shall participate share on a greater pro rata basis (or if agreed by the Incremental Term Lenders providing such Other Term A Loans, on a less than pro rata basis with the then outstanding Term Loans basis) in any mandatory prepaymentprepayment or voluntary prepayment of the Term A Loans hereunder, and the Other Term B Loans shall share on a pro rata basis (or if agreed by the Incremental Term Lenders providing such Other Term B Loans, on a less than pro rata basis) in any mandatory prepayment or voluntary prepayment of the Term B Loans hereunder;
(ivxi) Incremental Term Loans the Additional Revolving Commitments shall have such interest rates, optional prepayment provisions and fees the same terms as may be agreed between the Revolving Facility Commitments that is being increased (except that the Lenders providing the applicable Incremental Term Loan Additional Revolving Commitments may receive customary upfront fees in connection therewith), and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Additional Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) terms as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)Class that is being increased; and
(vixii) subject in the event that the Applicable Margin for any Other Term B Loans is greater than the Applicable Margin for the existing Term B Loans by more than 50 basis points, then the Applicable Margin for the existing Term B Loans shall be increased to Section 1.06the extent necessary so that the Applicable Margin (at each analogous point in the Pricing Grid, no Incremental if applicable) for the Other Term Loan Commitment B Loans is 50 basis points higher than the Applicable Margin for the existing Term B Loans; provided that in determining the Applicable Margin applicable to the existing Term B Loans and Other Term B Loans, (x) original issue discount or upfront or similar fees (collectively, “OID”) payable by Parent or any of its subsidiaries to the Lenders of the existing Term B Loans or the Other Term B Loans, in the primary syndication thereof shall become effective under this Section 2.01(bbe included (with OID being equated to interest based on an assumed four-year life to maturity), (y) unless customary arrangement or commitment fees payable to arrangers (wor their respective affiliates) no Default shall be excluded; and (z) if the ABR or Event of Default shall exist giving pro forma effect to Eurocurrency Rate “floor” for the Other Term B Loans is greater than the ABR or Eurocurrency Rate “floor,” respectively, for the existing Term B Loans the difference between such Incremental floor for the Other Term Loan Commitment B Loans and the incurrence existing Term B Loans shall be equated to an increase in the Applicable Margin for purposes of Indebtedness thereunder and use this clause (xii) (but shall result in an increase in the “floor” (not the Applicable Margin) of proceeds therefrom; the existing Term B Loan if this provision is triggered).
(b) Each such notice shall specify (x) the conditions set forth in clauses date (aeach, an “Incremental Commitments Effective Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a Business Day and (by) the identity of the Persons (each of which shall be an Eligible Person and the consent of the Persons specified in Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only 9.04(b)(i) shall have been received with respect thereto to the extent as would be required if the Lender of the Incremental Commitment were an assignee) whom the Borrower proposes would provide the Incremental Commitments and the portion of the Incremental Commitment to be provided by each such Person. As a Borrowing is made on such datecondition precedent to the effectiveness of any Incremental Commitments, clause the Borrower shall deliver to the Administrative Agent an Officer’s Certificate certifying that, before and after giving effect to the Incremental Commitments (and assuming full utilization thereof) the requirements of Section 2.22(a) are satisfied, and setting forth the calculation of the available Incremental Amount.
(c) On each Incremental Commitments Effective Date, each Incremental Term Lender shall make an Incremental Term Loan of the applicable Class to the Borrower in a principal amount equal to its Incremental Term Loan Commitment. The Borrower shall prepay any Revolving Facility Loans outstanding on the Incremental Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.17) to the extent necessary to keep the outstanding Revolving Facility Loans pro rata across all Classes of Revolving Facility Commitments arising from any nonratable increase in the Revolving Facility Commitments. If there is required to be complied with); (y) a new borrowing of Revolving Facility Loans on a Pro Forma Basissuch Incremental Commitments Effective Date, the Revolving Facility Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Facility Loans in accordance with Section 2.01(c).
(d) The Incremental Term Loans Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Incremental Commitments (and the incurrence other Persons specified in the definition of Indebtedness thereunder (assuming that Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such commitments are fully drawn on such date) amendments to this Agreement and use the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22.
(e) This Section 2.22 shall have received documents and legal opinions as supersede any provisions in Section 2.19 or Section 9.08 to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lendercontrary.
Appears in 1 contract
Sources: Credit Agreement (EVERTEC, Inc.)
Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Bank 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 requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective 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 shallshall together with any then outstanding Term A Loans, unless otherwise agreed by Term A-1 Loans or Term B Loans, as applicable, form a single Class of) Term A Loans, Term A-1 Loans or 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 Administrative AgentTerm A Loans, be not less than ten Business Days after the date such notice is deliveredTerm A-1 Loans and Term B Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any (x)(A) commitments to make additional Term B Loans shall not be guaranteed by any Subsidiaries have the same terms as the Term B Loans, and shall form part of the Borrower that do not guarantee same Class as the existing Term B Loans, (B) commitments to make additional Term A Loans shall have the same terms as the Term A Loans, and shall be secured on a pari passu basis by form part of the same Collateral Class as the Term A Loans (and no shall only be permitted to the extent they are primarily syndicated to regulated banks in the primary syndication thereof) and (C) commitments to make additional collateralTerm A-1 Loans shall have the same terms as the Term A-1 Loans, and shall form part of the same Class as the Term A-1 Loans (and shall only be permitted to the extent they are primarily syndicated to regulated banks in the primary syndication thereof) securing and (y) Incremental Revolving Facility Commitments shall have the same terms as the then existing Obligations;outstanding 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 latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of all then outstanding Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to this Section 2.21 shall rank equally and ratably in right of security with the Term A Loans and Term B Loans,
(Aiii) (x) the Maturity Date final maturity date of any Incremental Term A Loans shall be no earlier than the then Latest Term A Maturity Date in effect at the date of incurrence of such Incremental Term A Loans and, subject to clause (i) above, except as to pricing, amortization, final maturity date and participation in mandatory prepayments (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 terms that (as determined by the Borrower in good faith) are no more restrictive, taken as a whole, to the Borrower and its Subsidiaries, than the Term A Loans or such other terms as shall be reasonably satisfactory to the Administrative Agent and (By) the final maturity date of any Incremental Term Loans that are not additional Term A Loans, additional Term A-1 Loans, additional Term B Loans or Incremental Term A Loans shall be no earlier than the Term B Maturity Date in effect at the date of incurrence of such Incremental Term Loans and, except as to pricing, amortization, final maturity date and participation in mandatory prepayments (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 the terms that (as determined by the Borrower in good faith) are no more restrictive, taken as a whole, to the Borrower and its Subsidiaries, than the Term B Loans or such other terms as shall be reasonably satisfactory to the Administrative Agent,
(iv) (x) the Weighted Average Life to Maturity of any Incremental Term A Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans and (y) the Weighted Average Life to Maturity of any then outstanding Class Incremental Term Loans that are not additional Term A Loans, additional Term B Loans or Incremental Term A Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans;,
(iiiv) no with respect to any Other Incremental Term Loan incurred prior to the date that is 12 months after the Closing Date, the All-in Yield shall participate be as agreed by the respective Incremental Term Lenders and the Borrowers, except that the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Term B 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 “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 any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Incremental 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 Eurodollar 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 Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding (this clause (v), the “MFN Provision”),
(vi) such Other Incremental Term Loans may require participation on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis basis) with the then outstanding Term A Loans, Term A-1 Loans and Term B Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments,
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Facility Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront fees) as the applicable existing Class of Term Loans);Collateral, and
(vix) subject to the above, any Incremental Term Loans Borrower shall be on terms and pursuant to documentation to be determined by in compliance with the Borrower and Financial Covenants (if applicable) at the Lenders providing such Incremental Term Loan; provided that, time of the terms applicable to any incurrence of such Incremental Term Loans (except as expressly permitted above and except and/or Incremental Revolving Facility Commitments on a Pro Forma Basis for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are notmost recently ended Test Period. Each party hereto hereby agrees that, taken as a wholeupon the effectiveness of any Incremental Assumption Agreement, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except this Agreement shall be amended to the extent that (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 amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Limited Condition Transaction, (A) to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) and clause (ix) of the preceding paragraph (b) shall be tested at the time of the execution of the acquisition agreement, the declaration of the dividend by the Board of Directors of the Borrower or the applicable Subsidiary or the giving pro forma of the irrevocable notice of repayment or redemption, as applicable related to such Limited Condition Transaction (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loan Commitment Loans) and (B) no Event of Default shall exist under Section 7.01(a) or, with respect to the incurrence of Indebtedness thereunder and use of proceeds therefromBorrower only, under Sections 7.01(h) or 7.01(i) at the time such Incremental Term Loans are incurred; (xii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only 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 Borrowing is Limited Condition Transaction 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 (with the representation in Section 3.18 made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to the date of funding of such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that after giving effect to such commitments are fully drawn Limited Condition Transaction and other transactions on such datedate in connection therewith) and use those representations of proceeds therefrom, the seller or the target company (as applicable) included in the acquisition agreement related to the person or business to be acquired that are material to the interests of the Lenders and only to the extent that the Borrower would 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 in compliance with Section 8.11 accurate; and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall 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 Incremental Term Loans), 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, 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 apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
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Sources: Credit Agreement (Centurylink, Inc)
Incremental Commitments. (1a) The Borrower maymay at any time or from time to time after the Effective Date, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assigneesincreases in the amount of the Commitments (each such increase, a “Commitment Increase”), provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, (x) no Default shall exist and (y) all representations and warranties in each case, 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 shall not exceed $250,000,000. Each Commitment Increase shall be in an aggregate principal amount that is a Farm Credit Lender not less than $20,000,000 (whichprovided that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Commitment Increase. Commitment Increases may be provided, in each case, may include by any existing Lender or by any other bank or other financial institution (but no any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 9.04 for an assignment of Revolving Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be required provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to participate an amendment (an “Incremental Amendment”) to this Agreement, executed by the Borrower, each Lender agreeing to provide such Commitment Increase, 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 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 such Incremental Term Loan without its consent) and Amendment shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) satisfaction on the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms thereof of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries each of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses 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 2.20, (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 Section 5.02 such increase, there are satisfied whether any Revolving Loans outstanding, such Revolving Loans shall on or not a Credit Extension is made on such date (and, only prior 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings effectiveness of such Class are held 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 Lenders of such Class on a pro rata basis Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.15. The Administrative Agent and the respective amount of Term Loans of such Class held by each LenderLenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.20 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.
Appears in 1 contract
Incremental Commitments. (1) 60. The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, Persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion (discretion, all of the proceeds of which shall be used for working capital and general corporate purposes and for the payment of fees and expenses in connection with such Lenders, the “Incremental Term Loan Lenders”Commitments and/or Incremental Revolving Commitments; provided that each Incremental Revolving Lender providing a commitment to make revolving loans shall, to the extent the same would be required for an assignment under Section 9.04, be subject to the approval of the Administrative Agent, 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 Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,00025,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving 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 the initial Incremental Term Loans hereunder or term loans with terms identical to (and which shallshall together with any then outstanding Incremental Term Loans, unless otherwise agreed by as applicable, form a single Class of) the Administrative Agentthen initial Incremental Term Loans (if any) or (y) commitments to make term loans with pricing, be not less than ten Business Days after maturity, amortization, participation in mandatory prepayments, prepayment premiums and penalties and/or other terms different from the date such notice is deliveredthen outstanding Incremental Term Loans (if any) (“Other Incremental Term Loans”).
(2) 61. The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Commitments; provided provided, that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower At any time and from time to time prior to the Latest Maturity Date, the Company may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request Incremental Term Loan Commitments not to exceed $100,000,000 from that one or more Eligible AssigneesPersons (which may include the then-existing Lenders) establish Incremental Revolving Commitments or Incremental Term Loans under this paragraph (a), it being understood that (x) if such Incremental Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Company may agree to accept less than the amount of any proposed Incremental Commitment; provided that the minimum aggregate principal amount accepted shall equal the lesser of (i) $10,000,000 or (ii) the aggregate Incremental Commitments proposed to be provided in response to the Company's request. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000, (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) be greater than (i) $150,000,000 and (ii) any other amount so long as, in each casethe case of this clause (ii), that is on a Farm Credit Lender pro forma basis after giving effect to the incurrence of any such Incremental Commitment (whichassuming, in each casethe case of any Incremental Revolving Credit Commitment or a delayed draw Incremental Term Loan, the full amount thereof is drawn) and after giving effect to any Acquisition consummated in connection therewith and all other appropriate pro forma adjustments, the Secured Leverage Ratio does not exceed 2.50 to 1.00 on a Pro Forma Basis (with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute secured Indebtedness for the purposes of calculating the Secured Leverage Ratio even if unsecured). The Company may arrange for one or more banks or other financial institutions, which may include any Lender, to extend Revolving Credit Commitments, increase their existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to Revolving Credit Commitments or provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) an aggregate amount equal to the amount of the Incremental Commitment. In the event that one or more of such Persons offer to increase or enter into such Revolving Credit Commitments, and such Persons, the Company, any other applicable Borrower and the Administrative Agent agree as to the amount of such Revolving Credit Commitments to be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Company in connection therewith, the Company, any other applicable Borrower, such Persons and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement. Incremental Term Loans may be made hereunder pursuant to an amendment, restatement or amendment and restatement (an “Incremental Term Loan Commitments being requested (which shall be Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender participating in a minimum amount of $10,000,000 such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such . The Incremental Term Loan Commitments are Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be an increase necessary or appropriate, in any existing Class the reasonable opinion of Term Loans or a new Class of Term Loans the Company and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after to effect the date such notice is delivered)provisions of this Section 2.19.
(2b) The Loan PartiesNotwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this Section 2.19 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Financial Officer of the Company that the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall have been satisfied or waived by the Required Lenders and (ii) the Administrative Agent shall have received documents from the Company consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrowers to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation, (2) as of the date of the borrowing of such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any other Person whose consent is required substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as provided above of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement and (4) as of the date of the borrowing of such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Lenders providing such Acquisition-Related Incremental Commitments) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment. Nothing contained in this Section 2.19 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(c) The applicable Borrower and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Credit Commitments; provided that:
(i) (w) any commitments to make additional Initial Term A Loans shall have the same terms as the Initial Term A Loans, and shall form part of the same Class of Initial Term A Loans, (x) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term A Loans (“Other Incremental Term Loans Loans”) shall be subject to compliance with clauses (ii) through (vi) below and (y) the terms of any Incremental Revolving Credit Commitments, to the extent not consistent with the then outstanding Revolving Credit Commitments, shall not be guaranteed by any Subsidiaries more favorable, taken as a whole, to the lenders providing such Incremental Revolving Credit Commitment than the terms of the Borrower that do not guarantee then outstanding Revolving Credit Commitments (other than with respect to terms and conditions applicable after the existing Loans then latest Revolving Facility Maturity Date) and shall be secured on a pari passu basis by the same Collateral (and require no additional collateral) securing scheduled amortization or mandatory commitment reduction prior to the then existing Obligations;latest Revolving Facility Maturity Date,
(ii) the Other Incremental Term Loans incurred pursuant to clause (Aa) of this Section 2.19 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(iii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Company and the Incremental Term Loan Lenders in their sole discretion), shall have terms, to the extent not consistent with the Initial Term A Loans, shall not be more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term A Loans (other than with respect to terms and conditions applicable after the then latest Term Facility Maturity Date and except that to the extent any Incremental Term Loans consist of term “B” loans with annual amortization prior to final maturity that is not in excess of 1% of the original principal amount thereof, the terms of such term “B” loans may contain different terms consistent with then prevailing market terms for institutional loans (as reasonably determined by the Company and the Administrative Agent) and may include, without limitation, a customary excess cash flow sweep),
(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 any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;with the longest remaining Weighted Average Life to Maturity,
(ivv) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Company) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower (except that any or Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest ratesRevolving Credit Commitments, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 Other Incremental Term Loans and Incremental Revolving Credit Commitments shall not be secured by any asset of the incurrence Company or its Subsidiaries other than the Collateral. Each party hereto hereby agrees that, upon the effectiveness of Indebtedness thereunder any Incremental Assumption Agreement or Incremental Term Loan Amendment, this Agreement shall be amended to the extent (assuming but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.19 and any such commitments are fully drawn on such date) Collateral and use of proceeds therefrom, the Borrower would other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in compliance with Section 8.11 and (z) writing by the Administrative Agent shall have received documents with the Company’s consent (not to be unreasonably withheld) and legal opinions as furnished to such matters as are reasonably requested by the other parties hereto. Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the Borrowings outstanding applicable Class of such Class are held by the Lenders of such Class Term Loans on a pro rata basis basis, and (ii) all Revolving Loans in accordance with respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the respective amount applicable Class of Term outstanding Revolving Loans of such Class held by each Lenderon a pro rata basis.
Appears in 1 contract
Incremental Commitments. (1) The At any time prior to the repayment in full of all Loans and the termination of all Commitments hereunder, the Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request that one or more Persons (which may include the then-existing Lenders; provided that no Lender shall be obligated to provide such Incremental Commitments and may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loan Commitments under this paragraph (a), it being understood that (x) if such Incremental Commitment is to be provided by a Person that is not to exceed $100,000,000 from one or more Eligible Assigneesalready a Lender, the Administrative Agent and, in the case of Incremental Revolving Credit Commitments, each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender Issuing Bank shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject have consented to such consents, if any, as Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in connection with the event of an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion Person (such Lendersconsent not to be unreasonably withheld, conditioned or delayed) and (y) the “Incremental Term Loan Lenders”). Such notice shall set forth (i) Borrower may agree to accept less than the amount of the any proposed Incremental Term Loan Commitment. The minimum aggregate principal amount of Incremental Commitments being requested (which established pursuant to any Incremental Amendment shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, (or remaining permitted amount or, in each case, such lesser amount approved as may be agreed by the Administrative Agent), (ii) whether . In no event shall the aggregate amount of any Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in established at any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment time pursuant to this clause (da) shall specify exceed the terms of the applicable Maximum Incremental Term Loans; provided that:
(i) the Amount at such time. Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and Commitments shall be secured on a pari passu basis established pursuant to an amendment, supplement or amendment and restatement (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the same Collateral (Loan Parties, each Person providing an Incremental Commitment and no additional collateral) securing the then existing Obligations;
(ii) (A) Administrative Agent. Each Incremental Amendment may, without the Maturity Date consent of any Incremental Term Loans shall be no earlier than other Lenders, effect such amendments to this Agreement and the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term other Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees Documents as may be agreed between necessary or appropriate, in 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 reasonable opinion of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided thatAdministrative Agent, to (x) effect the provisions of this Section 2.18 or (y) to the extent the terms applicable and conditions of the Incremental Commitments are more favorable to any such the Lenders than comparable terms existing in the Loan Documents, to bring the terms and conditions of the existing Loans in line with the terms and conditions of the Incremental Loans necessary to achieve fungibility. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.18 unless (w) no Default or Event on the proposed date of Default shall exist giving pro forma effect to the effectiveness of such Incremental Term Loan Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) Borrower that, subject to the proviso set forth below, the conditions set forth in clauses (a) and (bc) of Section 5.02 are 4.02 shall have been 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents and legal opinions from the Borrower substantially consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such matters Incremental Commitment; provided that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as are reasonably requested (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (2) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the Administrative Agent. Upon any increase date of any existing Class effectiveness of Term Loansthe applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the Lenders shall take any action as may customary “Sungard” representations and warranties (with such representations and warranties to be reasonably required determined by the Administrative Agent to ensure that and the Borrowings Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderAcquisition-Related Incremental Commitment.
Appears in 1 contract
Sources: Credit Agreement (Maxlinear, Inc)
Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Banks (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 requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective 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 shallshall together with any then outstanding Term B-1 Loans form a single Class of) Term B-1 Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentTerm B-1 Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be not less than ten Business Days after in the date sole discretion of such notice is delivered)Lender.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x) commitments to make additional Term B-1 Loans shall have the same terms as the Term B-1 Loans, and shall form part of the same Class of Term B-1 Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding 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 latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving 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-1 Loans or, at the option of the Borrower, shall rank junior in right of security with the Term B-1 Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Term B-1 Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall subject to clause (v) below) or be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;unsecured,
(ii) (Aiii) the Maturity Date final maturity date of any such Other Incremental Term Loans (other than any Permitted Incremental Term A Loans) shall be no earlier than the then Latest Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich 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 same terms as the Term B-1 Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than any Permitted Incremental Term A Loans) shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term Loans;B-1 Facility,
(iiiv) no with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrowers, except that with respect to any Other Incremental Term Loan secured by Liens on the Collateral that are pari passu with the Liens thereon securing the Term B-1 Loans (other than any Permitted Incremental Term A Loans), the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Term B-1 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 “LIBOR 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 “LIBOR floor” being applicable to such Other Incremental 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 Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 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 with basis) than the then outstanding Term B-1 Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments, and
(except that any viii) Other Incremental Term Loans forming an addition and Incremental Revolving Facility Commitments shall not be secured by any asset of the Borrower or its Subsidiaries other than then Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to an existing Class 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, for the avoidance of doubt, to (x) provide that the Lenders providing any Permitted Incremental Term A Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Financial Covenant and be included in the “Required Financial Covenant Lenders); and” and (y) make appropriate changes to Sections 6.11, 7.01 and 9.08 with respect to the control of remedies in the event of a default in respect of the Financial Covenant. 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 “Loan Documents” hereunder and 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.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist giving pro forma effect to such (subject, in the case of any tranche of Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromLoans that is used to finance a Limited Condition Transaction, to Section 1.07); (xii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother 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 Transaction 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 in the case of any Limited Condition Acquisition, those representations of the seller or the target company (bas applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, 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 Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall 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 Incremental Term Loans), 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, 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 apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments not to exceed $100,000,000 and/or additional Revolving Commitments, as applicable (collectively, “Incremental Commitments”), from one or more Lenders (in the sole discretion of such Lenders) or Eligible AssigneesAssignees who will become Lenders, in an aggregate principal amount of up to $20,000,000; provided that (i) Incremental Commitments will first be offered to the then-existing Lenders on a pro rata basis in accordance with each case, that is a Farm Credit Lender (which, in each case, may include any such Lender's holdings of the then existing Lender Term Loans and Revolving Commitments (but no existing Lender will have any obligation to establish any Incremental Commitment) and, to the extent such Lender shall be required existing Lenders have not agreed or have declined to participate in any provide such Incremental Term Loan without its consentLoans within five (5) Business Days following such offer on the terms specified by the Borrower or arranger of such Incremental Loans, after being provided a bona fide opportunity to do so, the Borrower may then offer such opportunity (on the same terms) to other Persons; (ii) at the time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), no Default shall have occurred and be continuing or would result therefrom; and (iii) each such Person, if not already a Lender hereunder, shall be subject to such consentsthe approval of the Administrative Agent and, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lendersany additional Revolving Commitment, the “Incremental Term Loan Lenders”L/C Issuer (which approvals shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or additional Revolving Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 1,000,000) and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or additional Revolving Commitments are requested to become effective (which shallshall not be less than 10 Business Days nor more than 60 calendar days after the date of such notice, unless otherwise agreed to by the Administrative Agent, ). All Incremental Term Loans shall be not less than ten Business Days after the date such notice is delivered)made in Dollars.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or additional Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Lender. Subject to clause (c) below, each Incremental Assumption Agreement in respect of Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) Commitments shall specify the terms of the applicable Incremental Term Loans; provided Loans to be made thereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby and any increase to the Applicable Margins required by the foregoing provisions of this paragraph. Any such deemed amendment may be memorialized in writing by the - 57 - Administrative Agent with the Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(c) The terms of each Incremental Term Loan and, as applicable, each additional Revolving Commitment shall be reasonably satisfactory to the Administrative Agent and in any event:
(i) shall rank pari passu in right of payment and of security with the Revolving Loans and any other Class of Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing ObligationsLoans;
(ii) (A) in the case of Incremental Term Loans, shall not mature earlier than the later of the Revolving Maturity Date, and, if applicable, the Latest Maturity Date of any Incremental Term Loans outstanding at the time of incurrence of such Incremental Term Loans;
(iii) in the case of Incremental Term Loans, except to the extent resulting from customary (as determined by the Administrative Agent and the Borrower, each acting reasonably) amortization for a "term loan A" of the kind generally held by commercial banks, shall be no earlier than the then Latest Maturity Date and (B) the have a Weighted Average Life to Maturity of any Incremental Term Loans shall be no not shorter than the later of (a) the remaining time until the Revolving Maturity Date and (b), if applicable, the remaining Weighted Average Life to Maturity of any then outstanding Class of then existing Incremental Term Loans;
(iv) in the case of Incremental Term Loans, subject to clauses (ii) and (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans above, shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be amortization determined by the Borrower and the Lenders providing such applicable Incremental Term Loan; provided that, Lenders;
(v) in the terms applicable to any such case of Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably shall have an Applicable Margin determined by the Borrower and the applicable Incremental Term Lenders;
(except to vi) in the extent that this Agreement is amended (which shall not require case of Incremental Term Loans, may have customary mandatory prepayments in respect of excess cash flow and the consent net proceeds of any Lender) to incorporate such more restrictive provisions for issuances of Indebtedness, Dispositions and casualty and condemnation events, as specified in the benefit of the then existing Lenders)applicable Incremental Assumption Agreement; and
(vivii) subject all material terms of any additional Revolving Commitments and Revolving Loans under such additional Revolving Commitments shall be identical to Section 1.06, no the existing Revolving Commitments and Revolving Loans.
(d) No Incremental Term Loan Commitment Commitments or additional Revolving Commitments shall become effective under this Section 2.01(b) unless 2.11 unless, on the date of such effectiveness, (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (xi) the conditions set forth in clauses paragraphs (a) and (b) of Section 5.02 are 4.2 shall be satisfied whether or not as if it was a Credit Extension is made on borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date (and, only to and executed by a Financial Officer of the extent a Borrowing is made on such date, clause (c) is required to be complied with)Borrower; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents (with sufficient copies for each of the Incremental Term Lenders and/or additional Revolving Lenders) closing certificates, opinions of counsel and legal opinions as to such matters as are reasonably other customary documentation requested by the Administrative Agent.
(e) In connection with any such additional Revolving Commitments, each existing Revolving Lender (other than a Defaulting Lender) that shall have agreed to provide an Incremental Commitment in connection therewith shall have the right, subject to the other terms and conditions of this Section 2.11, to provide a portion of such Incremental Commitment in an amount equal to (i) its Applicable Percentage of the existing Revolving Commitments, multiplied by (ii) the amount of such Incremental Commitment. Upon In connection with any increase such Incremental Term Loan Commitments, each existing Term Lender (other than a Defaulting Lender) that shall have agreed to provide an Incremental Commitment in connection therewith shall have the right, subject to the other terms and conditions of any existing Class this Section 2.11, to provide a portion of such Incremental Term Loan Commitments in an amount equal to (i) a fraction, the numerator of which is the Outstanding Amount of such Term Lender’s Term Loans, and the Lenders shall denominator of which it the Outstanding Amount of all Term Loans of all Term Lenders, multiplied by (ii) the amount of such Incremental Commitment.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that that, following the Borrowings establishment of such Class any additional Revolving Commitments, the outstanding Revolving Loans are held by the Revolving Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding SOFR Borrowing of the relevant Class to be converted into an ABR Borrowing of such Class on the date of each additional Revolving Commitment, or by allocating a portion of each Incremental Term Loan to each outstanding SOFR Term Borrowing of the same Class on a pro rata basis basis, even though as a result thereof such Incremental Term Loan may effectively have a shorter Interest Period than the Term Loans included in accordance the Borrowing of which they are a part (and notwithstanding any other provision of this Credit Agreement that would prohibit such an initial Interest Period), or requiring a prepayment and reborrowing of Revolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 3.5 (it being understood that, the Administrative Agent shall consult with the respective amount of Term Loans of such Class held by each LenderBorrower regarding the foregoing and, to the extent practicable, will attempt to pursue options that minimize breakage costs).
Appears in 1 contract
Sources: Credit Agreement (Ooma Inc)
Incremental Commitments. (1a) The Borrower mayCompany may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request the establishment, during the Availability Period, of Incremental Term Loan Commitments; provided that the aggregate amount of all the Incremental Commitments established hereunder shall not to exceed $100,000,000 from one or more Eligible Assignees, in each case, 500,000,000 during the term of this Agreement. Each such notice shall specify (i) the date on which the Company proposes that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender the Incremental Commitments shall be required to participate in any such Incremental Term Loan without its consent) and effective, which shall be subject a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such consentsnotice is delivered to the Administrative Agent, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion and (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iii) the amount of the Incremental Term Loan Commitments being requested (which it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be approved by the Administrative Agent, each Issuing Lender and each Swingline Lender (such approval not to be unreasonably withheld or delayed)).
(b) The terms and conditions (including the applicable facility fee and interest rate spreads) of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and Loans and other extensions of credit made hereunder, and shall be treated as a single Class with such Commitments and Loans; provided that the Company at its election may pay upfront or closing fees with respect to Incremental Commitments without paying such fees with respect to the other Commitments.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments, no Default shall have occurred and be continuing, (ii) on the date of effectiveness thereof and after giving effect to the making of Loans and issuance of Letters of Credit thereunder to be made on such date, the representations and warranties of each Loan Party set forth in a minimum amount the Loan Documents that are qualified by materiality shall be true and correct and the representations and warranties that are not so qualified shall be true and correct in all material respects on and as of $10,000,000 such date, except to the extent such representations and minimum increments of $10,000,000, or remaining permitted amount orwarranties expressly relate to an earlier date (in which case such representations and warranties that are qualified by materiality shall be true and correct and such representations and warranties that are not so qualified shall be true and correct in all material respects, in each case, as of such lesser amount approved by the Administrative Agentearlier date), (ii) 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 a new Class of Term Loans and (iii) the date on which Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Term Commitments and the related transactions under this Section, (iv) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction and (v) each Subsidiary Guarantor (if any) shall have reaffirmed its Guarantee of the Obligations. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Commitments are requested to become effective (which shallDocuments as may be necessary or appropriate, unless otherwise agreed by in the opinion of the Administrative Agent, be not less than ten Business Days after to give effect to the date such notice is delivered)provisions of this Section.
(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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify Upon the terms effectiveness of the applicable an Incremental Term Loans; provided that:
Commitment of any Incremental Lender not already a Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans rights of, and benefits accruing to, Lenders hereunder and shall be secured on a pari passu basis bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the same Collateral (other Loan Documents, and no additional collateral) securing the then existing Obligations;
(ii) (A) such Incremental Commitment shall constitute (or, in the Maturity Date event such Incremental Lender already has a Commitment, shall increase) the Commitment of any such Incremental Term Loans shall be no earlier than the then Latest Maturity Date Lender and (B) the Weighted Average Life Total Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to Maturity further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Term Commitment, the Credit Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Commitments shall be no shorter than deemed to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the remaining Weighted Average Life effectiveness of such Incremental Commitments shall pay to Maturity the Administrative Agent in same day funds an amount equal to the difference between (A) the product of any then outstanding Class (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of Term Loans;
such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) no each Incremental Term Loan Lender that shall participate on not have had a greater than pro rata basis with Commitment prior to the then outstanding Term Loans effectiveness of such Incremental Commitments shall pay to Administrative Agent in any mandatory prepayment;
same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to Administrative Agent receives the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth funds specified in clauses (aii) and (biii) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (andabove, 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall pay to each Lender the portion of such funds that is equal to the difference, if positive, between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Incremental Commitments, the Borrowers shall be deemed to have received documents made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount for each Borrower equal to the aggregate amount of its Existing Revolving Borrowings and legal opinions as of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (and the Company shall deliver such matters as are reasonably requested Borrowing Request), (vi) each Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Commitments) and (vii) each Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrowers pursuant to the provisions of Section 2.16 if the date of the effectiveness of such Incremental Commitments occurs other than on the last day of the Interest Period relating thereto.
(f) The Administrative Agent. Upon any increase of any existing Class of Term Loans, Agent shall notify the Lenders shall take any action as may be reasonably required promptly upon receipt by the Administrative Agent of any notice from the Company referred to ensure that in Section 2.05(a) and of the Borrowings effectiveness of such Class are held by any Incremental Commitments, in each case, advising the Lenders of such Class on a pro rata basis in accordance with the respective amount details thereof and of Term Loans the Applicable Percentages of such Class held by each Lenderthe Lenders after giving effect thereto and of the payments required to be made pursuant to Section 2.05(e).
Appears in 1 contract
Incremental Commitments. (1a) The Borrower mayAbitibiBowaterResolute shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.14) or the Lenders, to request at any time and from time to time after the Effective Date and prior to the Revolving Loan Maturity Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide U.S. Facility Incremental Commitments or Canadian Facility Incremental Commitments (as specified by written notice AbitibiBowaterResolute) and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment, 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 from time Agent, AbitibiBowaterResolute and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to timefund any Revolving Loans in excess of its U.S. Facility Commitment or Canadian Facility Commitment, request Incremental Term Loan Commitments not to exceed $100,000,000 from one as applicable, (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its U.S. Facility RL Percentage or Canadian Facility RL Percentage, as applicable, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14, (ii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of the Administrative Agent or any other Lender; provided that any Person that is not a Farm Credit Lender prior to the effectiveness of its Incremental Commitment shall require the consent of the Administrative Agent, each Issuing Lender and theeach Swingline Lender (which, in each case, may include any existing Lender (but no such Lender which consents shall not be required to participate in any such Incremental Term Loan without its consentunreasonably withheld or delayed) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such an Incremental Term Loans in their sole discretion Commitment pursuant to this Section 2.14, (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (iiii) the aggregate amount of the each request (and provision therefor) for U.S. Facility Incremental Term Loan Commitments being requested (which or Canadian Facility Incremental Commitments, or any combination thereof, shall be in a minimum aggregate amount for all Lenders which provide such Incremental Commitments pursuant to a given Incremental Commitment -103- Agreement pursuant to this Section 2.14 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, 25,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Commitments permitted to be provided pursuant to this Section 2.14 following the Sixth Amendment Effective Date shall not exceed in the aggregate $200,000,000, (v) if the Applicable Commitment Fee Percentage and/or Applicable Margins with respect to Commitments to be provided or Loans to be borrowed incurred pursuant to an Incremental Commitment shall be higher in any respect than those applicable to any other Commitments or Loans, the Applicable Commitment Fee Percentage and/or Applicable Margins, as the case may be, for the other Commitments and Loans shall be automatically increased as and to the extent needed to eliminate any deficiencies in accordance with the definition of “Applicable Commitment Fee Percentage” or “Applicable Margin” contained herein (such increase, the “Additional Commitment Fee” or “Additional Margin”, as the case may be), (vi) each Incremental Commitment Agreement shall specifically designate whether such Incremental Term Loan Commitments are U.S. Facility Incremental Commitments or Canadian Facility Incremental Commitments, (vii) all Revolving Loans of a Borrower incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Loan Documents and shall be secured by the relevant Security Documents, and guaranteed under the Guarantee and Collateral Agreement and/or, the Canadian Guarantee and Collateral Agreement and/or English Subsidiary Guarantee Agreement, on a pari passu basis with all other Loans of such Borrower secured by each relevant Security Document and guaranteed under the Guarantee and Collateral Agreement and/or, the Canadian Guarantee and Collateral Agreement and/or English Subsidiary Guarantee Agreement, and (ix) each Lender (including any Person which is an increase Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in any existing Class this Agreement, participate in Swingline Loans and Letters of Term Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a), in each case, under the U.S. Facility Commitment or Canadian Facility Commitment, as applicable, and such Revolving Loans shall constitute U.S. Facility Revolving Loans or a new Class Canadian Facility Revolving Loans, as the case may be, for all purposes of Term Loans this Agreement and (iii) the date on which such Incremental Term other applicable Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)Documents.
(2b) The Loan PartiesAt the time of the provision of Incremental Commitments pursuant to this Section 2.14, (I) AbitibiBowaterResolute, each other Borrower, each Guarantor, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to AbitibiBowaterResolute and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the 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 (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.14 shall have been satisfied and (iv) all other Person whose consent is required conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied) and (II) AbitibiBowaterResolute, each other Borrower, each Guarantor, the Collateral Agent and each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and the Collateral Agent such other documentation additional Security Documents and/or amendments to the -104- Security Documents as the Administrative Agent shall may reasonably specify request which are necessary to evidence ensure that all Loans incurred pursuant to the Incremental Term Commitments and any Additional Commitment Fee and/or Additional Margin are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the U.S. Facility Commitment and/or the Canadian Facility Commitment, as the case may be, and each Incremental Lender shall constitute a U.S. Facility Lender and/or Canadian Facility Lender, as applicable, for all purposes of this Agreement and each other applicable Loan Commitment. Each Additional Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.14, each Borrower shall, in coordination with the terms Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing U.S. Facility Lenders and/or Canadian Lenders); and
, as applicable, participate in each outstanding Borrowing of each Facility of Revolving Loans pro rata on the basis of their respective Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateTotal Commitment pursuant to this Section 2.14) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the Borrowers being obligated to pay to the respective amount Lenders any costs of Term Loans of the type referred to in Section 2.11 in connection with any such Class held by each Lenderrepayment and/or Borrowing.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments, in an amount not to exceed $100,000,000 the Incremental Term Loan Amount or the Incremental Revolving Loan Amount, as applicable, from one or more Eligible AssigneesIncremental Term Lenders and/or Incremental Revolving Credit Lenders, in each case, that is a Farm Credit Lender (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Lender; provided that each Incremental Term Loan without its consent) Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to such consentsthe approval of the Administrative Agent and, if any, as would be required in connection with the case of an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such LendersRevolving Credit Lender, the “Incremental Term Loan Lenders”Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in integral multiples of $1,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,0005,000,000 or in an amount equal to the remaining Incremental Term Loan Amount or the Incremental Revolving Loan Amount, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agentas applicable), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, shall not be not less than ten 10 Business Days after the date of such notice is deliverednotice) and (iii) in the case of Incremental Term Commitments, whether such Incremental Term Commitments are to be Term Loan Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). For the avoidance of doubt, (x) no Lender shall have any obligation to make an Incremental Term Loan or to assume an Incremental Revolving Credit Commitment and (y) no approval from the Administrative Agent or the Lenders shall be required with regard to, and neither the Administrative Agent nor any Lender shall have the right to object to, challenge or obstruct, any request by the Borrower to the Administrative Agent to arrange for the making of any Incremental Term Loan or Incremental Revolving Credit Commitment.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Term Loan Assumption Agreement and/or an Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) such agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Credit Commitments to be made thereunder; provided provided, however, that:
, without the prior written consent of the Required Lenders, (i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than (A) the then Latest Maturity Date final maturity date of any other Class of Term Loans and (B) if the Weighted Average Life to Maturity initial yield (determined as provided below) on such Other Term Loans exceeds the Applicable Percentage then in effect for Eurodollar Term Loans of any Incremental Class, the date falling six months after the final maturity date of each such adversely affected Class; (ii) the average life to maturity of any Other Term Loans shall be no shorter than (A) the remaining Weighted Average Life average life to Maturity maturity of any then outstanding other Class of Term Loans;
Loans and (B) if the initial yield (determined as provided below) on such Other Term Loans exceeds the Applicable Percentage then in effect for Eurodollar Term Loans of any Class, six months longer than the average life to maturity of each such adversely affected Class; and (iii) no Incremental Term Loan shall participate if the initial yield on a greater than pro rata basis with the then outstanding any Other Term Loans in any mandatory prepayment;
(ivas determined by the Administrative Agent to be equal to the sum of (A) Incremental the margin over the Adjusted LIBO Rate applicable to the Other Term Loans shall have and (B) if the Other Term Loans are initially made at a discount or the lenders making the same receive an “upfront” fee (as opposed to an “arrangement” or similar fee paid solely to the arranger or arrangers of such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Other Term Loan Commitments and Loans) from the Borrower or any Subsidiary for doing so (except that any Incremental the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans forming an addition and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to an existing herein as the “Yield Differential”) the Applicable Percentage for Eurodollar Term Loans of any Class, then the Applicable Percentage for each adversely affected Class of Term Loans shall have automatically be increased by the same interest ratesYield Differential, optional prepayment provisions and fees (other than upfront fees) as effective upon the applicable existing Class making of the Other Term Loans);
(v) subject . The Administrative Agent shall promptly notify each Lender as to the aboveeffectiveness of each Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loans Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except deemed amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Commitment or Incremental Revolving Credit Commitment evidenced thereby and any increase to the Applicable Percentages required by the foregoing provisions of this Section 2.24(b); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.01(b) 2.24 unless (wi) no Default on or Event before the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses paragraphs (ab) and (bc) of Section 5.02 are 4.01 shall be satisfied whether or not and the Administrative Agent shall have received a Credit Extension is made on certificate to that effect dated as of such date and executed by a Financial Officer of the Borrower, (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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents (with sufficient copies for each of the Incremental Term Lenders or Incremental Revolving Credit Lenders, as the case may be) legal opinions, board resolutions and legal opinions as other closing certificates and documentation consistent with those delivered on the Closing Date under Section 4.02 and (iii) in the case of an Incremental Term Commitment the Borrower would be in Pro Forma Compliance after giving effect to such matters Incremental Term Commitment and the Loans to be made thereunder and the application of the proceeds therefrom as are reasonably requested by if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall 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), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and (ii) all Revolving Loans in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a) required to be made after the making of such Class are held Incremental Term Loans shall be ratably increased by the Lenders aggregate principal amount of such Class on a pro rata basis in accordance with the respective amount of Incremental Term Loans of such Class held by each LenderLoans.”
(e) Section 3.23
Appears in 1 contract
Incremental Commitments. (1a) The So long as no Default or Event of Default then exists or would result therefrom, the Borrower mayshall, by written notice in consultation with the Administrative Agent, have the right to request on one or more occasions prior to the Administrative Agent from time to time, request respective Incremental Commitment Expiry Date that one or more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible AssigneesIncremental Revolving Loan Commitments, in each casecase as designated (with the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed if such designation is otherwise made in accordance with the provisions of this Agreement)) in the relevant Incremental Commitment Agreement and, that is a Farm Credit Lender subject to the terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Incremental Term Loans or Revolving Loans, as the case may be, pursuant thereto, it being understood and agreed, however, that:
(which, in each case, may include any existing Lender (but i) no such Lender shall be required obligated to participate in provide an Incremental Commitment as a result of any such Incremental Term Loan without its consent) request by the Borrower, and shall be subject to until such consentstime, if any, as would be required such Lender has agreed in connection with an assignment of a Term Loan to such Person) willing its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement as provided in clause (b) of this Section 1.14, such Lender shall not be obligated to fund (x) any Incremental Term Loans or (y) any Revolving Loans in their sole discretion excess of its Revolving Loan Commitment as in effect prior to giving effect to any Incremental Revolving Loan Commitment provided pursuant to this Section 1.14;
(such ii) except as otherwise provided in clauses (x) and (xi) below, any Lender (or, in the circumstances contemplated by clause (viii) below, any other Person which is an Eligible Transferee) may so provide an Incremental Commitment without the consent of any other Lender;
(iii) each provision of Incremental Commitments pursuant to this Section 1.14 on a given date shall be in a minimum aggregate amount (for all Lenders (including in the circumstances contemplated by clause (viii) below, Eligible Transferees who will become Lenders, )) of $20,000,000;
(iv) the “aggregate amount of all Incremental Commitments permitted to be provided pursuant to this Section 1.14 shall not exceed $100,000,000;
(v) (x) each Incremental Commitment Agreement pursuant to which Incremental Term Loan Lenders”Commitments are being provided shall specifically designate (with the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed if such designation is otherwise made in accordance with the provisions of this Agreement). Such notice shall set forth (i) the amount Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Term Loans or Incremental Term Loan Commitments) unless the requirements of following Section 1.14(c) are satisfied) and (y) each Incremental Commitment Agreement pursuant to which Incremental Revolving Loan Commitments are being provided shall specifically designate that such Incremental Revolving Loan Commitments are to be added to the Total Revolving Loan Commitment;
(vi) each Lender agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in a minimum this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Commitment Agreement as provided in Section 1.01(e) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other Credit Documents;
(vii) the Revolving Loan Commitment of each Lender agreeing to provide an Incremental Revolving Loan Commitment pursuant to an Incremental Commitment Agreement shall be increased by the amount of $10,000,000 and minimum increments such Incremental Revolving Commitment specified in the relevant Incremental Commitment Agreement effective on the effective date set forth in the respective Incremental Commitment Agreement;
(viii) if, within 10 Business Days after the Borrower has requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Commitments pursuant to this Section 1.14 the Borrower has not received Incremental Commitments in an aggregate amount equal to that amount of $10,000,000Incremental Commitments which the Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the Borrower as provided in clause (b) of this Section 1.14), then the Borrower may, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or remaining permitted amount ordelayed), in each case, such lesser amount request Incremental Commitments from Persons which are Eligible Transferees approved by the Administrative AgentAgent (such approval not to be unreasonably withheld or delayed) in an aggregate amount equal to such deficiency (and with the fees and interest to be paid to such Eligible Transferees to be no greater than that to be paid (or which was offered to) to the then existing Lenders providing (or which were requested to provide) the requested Incremental Commitments);
(ix) all Incremental Term Loans and Revolving Loans to be incurred pursuant to Incremental Commitments provided in response to a particular request for same made by the Borrower in accordance with clause (b) of this Section 1.14 shall be incurred pursuant to Incremental Commitments provided pursuant to a single Incremental Commitment Agreement, which may be executed in counterparts;
(iix) whether in no event shall the Maturity Date of the Incremental Term Loans to be borrowed provided pursuant to any Incremental Commitment Agreement be earlier than the applicable Maturity Date of any other Tranche of Loans (or the Revolving Loan Maturity Date, regardless of whether any Revolving Loans are then outstanding) outstanding at the time such Incremental Term Loans are incurred, unless both (I) the Required Lenders and (II) those Lenders holding (as outstanding Loans or existing Revolving Loan Commitments, as the case may be) (x) a majority of the aggregate principal amount of outstanding Term Loans of each Tranche having a Maturity Date after such proposed Maturity Date plus (y) if such proposed Maturity Date is to be prior to the Revolving Loan Maturity Date, a majority of the Total Revolving Loan Commitment, expressly agree in writing;
(xi) 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, unless both (I) the Required Lenders and (II) those Lenders holding a majority of the aggregate principal amount of outstanding Term Loans having a Weighted Average Life to Maturity which is longer than the Weighted Average Life to Maturity of the Incremental Term Loans to be made pursuant to the relevant Incremental Term Loan Commitments expressly agree in writing;
(xii) in the case of any provision of Incremental Term Commitments, the Borrower shall be in compliance with the Financial Covenants (calculated on a Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are to be an increase in (and any other then existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested Commitments) have been incurred and the proceeds thereof applied in a manner as certified to become effective (which shall, unless otherwise agreed by an Authorized Officer of the Borrower to the Administrative Agent, ) at such time; and
(xiii) all actions taken by the Borrower pursuant to this Section 1.14 shall be not less than ten Business Days after taken in consultation with the date such notice is delivered)Administrative Agent.
(2b) The Loan PartiesAt the time of any provision of Incremental Commitments of a given Tranche pursuant to this Section 1.14:
(i) the Borrower, the Administrative Agent and any each Lender or other Person whose consent is required as provided above Eligible Transferee which agrees to provide an Incremental Commitment (each an “Incremental Lender”) shall execute (which execution may be in counterparts) and deliver to the Administrative Agent an Additional Incremental Commitment Agreement (it being understood that a single Incremental Commitment Agreement shall be executed and delivered by all Incremental Lenders providing Incremental Commitments in response to a particular request for same made by the Borrower) substantially in the form of Exhibit C (appropriately completed and with such modifications as may be reasonably acceptable to the Administrative Agent), with the effectiveness of the Incremental Commitment(s) provided therein to occur on the date set forth in such Incremental Commitment Agreement and the payment of any fees required in connection therewith;
(ii) the Borrower and its Subsidiaries shall have delivered such amendments, modifications and/or supplements to the Security Documents 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 Commitments are secured by, and entitled to the benefits of, the Security Documents;
(iii) the Administrative Agent shall receive an acknowledgment from the Credit Extension Amendment Parties that the Incremental Term Loans and/or Revolving Loans to be incurred pursuant to such Incremental Term Loan Commitments (or Revolving Loan Commitments, as the case may be) are entitled to the benefits of the Subsidiaries Guaranty and the Security Documents, together with resolutions executed by (x) the Borrower, authorizing the incurrence of such Incremental Term Loans and/or such Revolving Loans, as the case may be, pursuant to such Incremental Term Loan Commitments (or Revolving Loan Commitments, as the case may be) and (y) each other Credit Party, stating that the Incremental Term Loans and/or Revolving Loans to be incurred pursuant to such Incremental Term Loan Commitments (or Revolving Loan Commitments, as the case may be) are entitled to benefits of the Subsidiaries Guaranty and the Security Documents (it being understood that such resolutions may consist of resolutions delivered on or before the Initial Borrowing Date pursuant to Section 5.04 so long as such resolutions otherwise comply with the requirements of this clause (iii));
(iv) the Administrative Agent shall have received evidence satisfactory to it that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments (or Revolving Loan Commitments, as the case may be) are (x) permitted by the terms of any outstanding Permitted Subordinated Debt (and related Permitted Subordinated Debt Documents) and (y) constitute “Senior Indebtedness” and “Designated Senior Indebtedness” (or any similar term) under any such Permitted Subordinated Debt (and related Permitted Subordinated Debt Documents); and
(v) the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Administrative Agent and dated the date the respective Incremental Commitments are being provided pursuant to this Section 1.14, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Initial Borrowing Date pursuant to Section 5.03 as may be reasonably requested by the Administrative Agent, and such other documentation matters as the Administrative Agent may reasonably request (including, without limitation, a no conflicts opinion with respect to any other material Indebtedness of Borrower and its Subsidiaries and the matters described in immediately preceding clause (iv)). The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the effectiveness of each Incremental Commitment Agreement, and shall deliver to each Lender a copy of same, and (i) at such time Schedule 1.01 shall be deemed modified to reflect the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment Commitments (including the Tranche or Tranches thereof) of such Incremental Lenders and/or the Revolving Loan Commitments of such Incremental Lender, as the case may be, and (ii) to the extent requested by such Incremental Lenders, the appropriate Notes will be issued, at the Borrower’s expense, to such Incremental Lenders, to be consistent with the requirements of Section 1.05 (with appropriate modifications, to the extent needed) to reflect the Incremental Term Loans made by such Incremental Lenders or such Incremental Lender, as the case may be and/or the increased Revolving Loan Commitment of such Incremental Lenders, or Incremental Lender, as the case may be.
(c) Notwithstanding anything to the contrary contained above, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this clause Agreement (dwith a designation reasonably satisfactory to the Administrative Agent, which designation may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) shall or a combination thereof (i.e., ▇-▇, ▇-▇, ▇-▇, ▇-▇, etc.), provided that the parties to a given Incremental Commitment Agreement may specify therein that the terms of the applicable respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans; provided that, so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Commitment Agreement shall not be guaranteed by any Subsidiaries have the same Maturity Date and the same Weighted Average Life to Maturity as the Tranche of Term Loans to which the Borrower that do not guarantee the existing new Incremental Term Loans are being added, and shall be secured on a pari passu basis by bear interest at the same Collateral rates (and no additional collaterali.e., have the same Applicable Margins) securing the then existing Obligationsapplicable to such Tranche;
(ii) (A) the Maturity Date of any new Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 Scheduled Incremental Term Loan Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (other than upfront feeswith the amount of each Scheduled Incremental Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the applicable existing Class Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Incremental Term Loan Repayment of the respective Tranche proportionately; and
(iii) on the date of the making of such new Incremental Term Loans);
(v) subject , and notwithstanding anything to the abovecontrary set forth in Section 1.09, any the aggregate principal amount of such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the respective Tranche on terms a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Loans of the respective Tranche, and pursuant so that the existing Lenders with respect to documentation such Tranche continue to have the same participation (by amount) in each Borrowing as they had before the making of the new Incremental Term Loans of such Tranche. To the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add the aggregate principal amount of such new Incremental Term Loans to then outstanding Borrowings of Eurodollar Loans, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Loans and which will end on the last day of such Interest Period). In connection therewith, the Borrower may agree, in the respective Incremental Commitment Agreement, to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing Interest Period on such basis as may be determined agreed by the Borrower and the Lenders providing such Incremental Term Loan; provided that, respective Lender or Lenders.
(d) At the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent time of any Lender) provision of Incremental Revolving Loan Commitments pursuant to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom1.14, the Borrower would be shall, in compliance coordination with Section 8.11 and (z) 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 , repay outstanding Revolving Loans of any existing Class certain of Term the Lenders with outstanding Revolving Loans, the and incur additional Revolving Loans from certain other Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term outstanding Revolving Loans of such Class held by each Lender.
Appears in 1 contract
Sources: Credit Agreement (Nash Finch Co)
Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be 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 “Incremental Term Loan Lenders”Issuing Bank 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 requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective 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 shallshall together with any then outstanding Initial Term B-1 Loans or Term B-2 Loans, unless otherwise agreed by as applicable, form a single Class of) Initial Term B-1 Loans or Term B-2 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredInitial Term B-1 Loans and Term B-2 Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x)(A) commitments to make additional Initial Term B-1 Loans shall have the same terms as the Initial Term B-1 Loans, and shall form part of the same Class of Initial Term BTerm B-1 Loans and (B) commitments to make additional Term B-2 Loans shall have the same terms as the Term B-2 Loans, and shall form part of the same Class of Term B-2 Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding 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 latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving 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-1 Loans and Term B-2 Loans or, at the option of the Borrower, shall rank junior in right of security with the Initial Term B-1 Loans and Term B-2 Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Initial Term B-1 Loans and/or Term B-2 Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralv) securing the then existing Obligations;below),
(ii) (Aiii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to the Term B-1 Loans and Term B-2 Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich 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) the same terms as the Initial Term B-1 Loans or Term B-2 Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(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 any then outstanding Class of the Term Loans;Loans with the longest remaining Weighted Average Life to Maturity,
(iiiv) no with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrowers, except that the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Initial Term B-1 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 “LIBOR floor” as provided in the following proviso) applicable to such Initial 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 “LIBOR floor” being applicable to such Other Incremental 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 Initial Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Initial Term B-1 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 basis) than the Initial Term A Loans, the Term B-1 Loans and, other than with respect to any mandatory prepayment pursuant to Section 2.11(c), the then outstanding Term B-2 Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments, and
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Facility Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront fees) as then Collateral. Each party hereto hereby agrees that, upon the applicable existing Class effectiveness of Term Loans);
(v) subject to the above, any Incremental Term Loans Assumption Agreement, this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that (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 amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition, to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Business Acquisition (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving pro forma effect to such tranche of Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromLoans); (xii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother 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 Permitted Business 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 (bas applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, 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 Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall 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 Incremental Term Loans), 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, 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 apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Sources: Credit Agreement (Dollar Tree Inc)
Incremental Commitments. (1) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments not to exceed $100,000,000 after the First Amendment Effective Date from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the 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. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
: (i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
; (ii) )
(A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
; (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
; (iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
; (v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.Incremental
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans Commitments in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 5,000,000 or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, “Increased Amount Date”) and (iii) whether such Incremental Commitments are to be not less than ten Business Days after (x) commitments to make additional Term B Loans (“Additional Term B Loans”) or (y) commitments to make secured term loans with terms different from the date such notice is deliveredTerm B Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Commitments; provided provided, that:
(i) any commitments to make Additional Term B Loans shall have the same terms as the Term B Loans,
(ii) the Other Incremental Term Loans shall not be guaranteed by any Subsidiaries rank pari passu or junior in right of security with the Borrower Term B Loans (provided, that do not guarantee the existing such Incremental Term Loans and shall be secured on subject to a pari passu basis by Permitted Pari Passu Intercreditor Agreement or a Permitted Junior Intercreditor Agreement and any such Other Incremental Term Loans that rank junior in right of security with the same Collateral (and no additional collateral) securing Term B Loans shall be established as a separate facility from the then existing Obligations;Term B Facility),
(ii) (Aiii) the Maturity Date final maturity date of any Other Incremental Term Loans shall be no earlier than the then Latest Term Maturity Date of the Term B Loans in effect on the Closing Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security, shall have (Bx) 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 Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B Loans;,
(iiiv) no Default or Event of Default shall have occurred and be continuing or would result therefrom,
(vi) with respect to mandatory prepayments of the type set forth in Section 2.12, the Other Incremental Term Loan Loans shall not participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;B Loans, and
(ivvii) with respect to any Other Incremental Term Loans that rank pari passu in right of security with the Term B Loans, the All-in Yield shall have be the same as that applicable to the Term B Loans made on the Closing Date, except that the All-in Yield in respect of any such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Other Incremental Term Loan Commitments and may exceed the Borrower All-in Yield in respect of such Term B Loans made on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (except that any Incremental such difference, the “Yield Differential”) then the Applicable Rate (or the “LIBOR floor” as provided in the following proviso) applicable to such 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term B Loans shall be on terms and pursuant increased such that after giving effect to documentation to be determined by such increase, the Borrower and the Lenders providing such Incremental Term LoanYield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Other Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, such floor is greater than the terms Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, 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 Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term B Loans then outstanding Commitments and Loansoutstanding. Each party hereto hereby agrees that, as reasonably determined by upon the Borrower (except effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby as provided for in Section 9.02(b). Any amendment to this Agreement or any other Loan Document that is amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect such effectiveness, to such the extent required by the relevant Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) Assumption Agreement, the conditions set forth in clauses (a) and (b) of Section 5.02 are 4.02 shall be satisfied whether or not and the Administrative Agent shall have received a Credit Extension is made on certificate to that effect dated such date (and, only to the extent and executed by 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 and the incurrence Responsible Officer of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , 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 require to assure that the Incremental Term Loans 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) one or more Classes of any then-existing Class Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of outstanding applicable Class of Term B Loans on a pro rata basis. The Borrower agrees that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in Section 2.19(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term B Loans, on a pro rata basis and on the same terms (“Pro Rata Loan 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 Term B Loans of such Class and to otherwise modify the terms of such Lender’s Term B Loans of such Class pursuant to the terms of the relevant Pro Rata Loan Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Term B Loans and/or modifying the amortization schedule in respect of such Lender’s Term B 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 B Loans, that all of the Term B 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. Any such extension (a “Loan Extension”) agreed to between the Borrower and any such Lender (an “Extending Term Loan Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (such extended Term B Loan, an “Extended Term Loan”). Each Pro Rata Loan 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 Term Loan 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 of such Extending Term Loan Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans; provided, that (i) except as to interest rates, fees, 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)), amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (iv) of this proviso, be determined by the Borrower and set forth in the Pro Rata Loan Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the 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 B Loans to which such offer relates, and (iv) any Extended 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 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 terms of the Extended Term Loans evidenced thereby as provided for in Section 9.02(b). 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.
(g) Upon the effectiveness of any such Loan Extension, the applicable Extending Term Loan Lender’s Term B Loan will be automatically designated an Extended Term Loan. For purposes of this Agreement and the other Loan Documents, such Extending Term Loan Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan.
(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 Term Loans will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan is required to be in any minimum amount or any minimum increment, (iii) any Extending Term Loan Lender may extend all or any portion of its Term B Loans pursuant to one or more Pro Rata Loan Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan), (iv) there shall be no condition to any Loan Extension at any time or from time to time other than notice to the Administrative Agent of such Loan Extension and the terms of the Extended Term Loan implemented thereby (in accordance with the respective applicable terms of clause (f) of this Section 2.21) and (v) all Extended Term Loans and all obligations in respect thereof shall be Loan 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.
(i) Each Loan Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Loan Extension Offer; provided, that the Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Loan Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Loan Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in Section 2.19(c) (which provisions shall not be applicable to clause (j) through (l) of this Section 2.21), the Borrower may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (“Refinancing Term Loans”), the Net Proceeds of which are used to Refinance in whole or in part any Class of Term B Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not earlier than five Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.01 and Section 4.02 shall be satisfied to the extent required by the relevant Incremental Assumption Agreement governing such Refinancing Term Loans;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Maturity Date of the refinanced Term B Loans,
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to Maturity of the refinanced Term B Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term B Loans plus amounts used to pay fees and expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates or any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and optional prepayment or mandatory prepayment, which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) taken as a whole shall be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Term B Loans (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then in effect), as determined by the Borrower in good faith;
(vi) Refinancing Term Loans secured by Liens on the Collateral;
(vii) there shall be no obligor in respect of such Refinancing Term Loans that is not a Loan Party, and
(viii) the Term B Loans or Refinancing Term Loans being refinanced or replaced will be permanently reduced simultaneously with the refinancing or replacement thereof.
(k) The Borrower may approach any Lender or any other person that would be an Eligible Assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans; provided, that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated an additional Class held by each Lenderof Term B Loans for all purposes of this Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Incremental Assumption Agreement governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term B Loans made to the Borrower.
(l) For purposes of this Agreement and the other Loan Documents, if a Lender is providing a Refinancing Term Loan, such Le
Appears in 1 contract
Sources: First Lien Credit Agreement (DS Services of America, Inc.)
Incremental Commitments. (1a) The Borrower mayBorrowers shall have the right, by written notice without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.15) or the Lenders (except for the Issuing Lenders as provided below), to request at any time and from time to time after the Effective Date and prior to the Revolving Commitment Termination Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided, that, (i) no Lender shall be obligated to provide an Incremental Commitment, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and has executed and delivered to the Administrative Agent from time Agent, the Company and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to time, request Incremental Term fund any Revolving Loans in excess of its Revolving Loan Commitments not to exceed $100,000,000 from one Commitment (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its RL Percentage, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.15; provided, that, the Lenders shall have at least 10 Business Days following the Borrowers’ request for Incremental Commitments to decide whether or not to provide any such Incremental Commitments (and, to the extent that is a Farm Credit any such Lender (whichfails to respond within such 10 Business Day period, in each case, may include any existing Lender (but no such Lender shall be required deemed to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing have rejected to provide such an Incremental Term Loans in their sole discretion Commitment), (such Lendersii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of the Administrative Agent or any other Lender; provided, that, any Person that is not a Lender prior to the “effectiveness of its Incremental Term Loan Lenders”). Such notice Commitment shall set forth require the consent of the Administrative Agent and each Issuing Lender (ieach of which consents shall not be unreasonably withheld) to provide an Incremental Commitment pursuant to this Section 2.15, (iii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.15 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, 25,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Commitments permitted to be provided pursuant to this Section 2.15 shall not exceed in the aggregate $200,000,000, (v) the Borrowers shall not increase the Total Revolving Loan Commitment pursuant to this Section 2.15 more than five times, (vi) if the Applicable Margins with respect to Revolving Loans to be borrowed incurred pursuant to an Incremental Commitment shall be more than 50 basis points higher than those applicable to any other Revolving Loans, the Applicable Margins for such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term other Revolving Loans and extension of credit hereunder shall be automatically increased by an amount equal to such excess (iiisuch increase, the “Additional Margin”), (vii) all Revolving Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the date other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under the Guaranty, on a pari passu basis with all other Obligations secured by each relevant Security Document and guaranteed under the Guaranty, and (viii) each Lender (including any Person which such is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitments are requested Commitment pursuant to become effective (which an Incremental Commitment Agreement shall, unless otherwise agreed by subject to the Administrative Agentsatisfaction of the relevant conditions set forth in this Agreement, be not less than ten Business Days after participate in Swingline Loans and Letters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the date such notice is delivered)other applicable Credit Documents.
(2b) The Loan At the time of the provision of Incremental Commitments pursuant to this Section 2.15, (i) the Credit Parties, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Borrowers and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the 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 (A) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (B) all Incremental Commitment Requirements have been satisfied, (C) all conditions set forth in this Section 2.15 shall have been satisfied and (D) all other Person whose consent is required conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied) and (ii) the Credit Parties and the Collateral Agent and each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an such additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments and any Additional Credit Extension Amendment and such other documentation as Margin are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Term Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment. Each Additional Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.15, each Borrower shall, in coordination with the terms Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Lenders, and incur additional Revolving Loans from certain other Lenders (including the Incremental Term Loans; provided that:Lenders), in each case to the extent necessary so that all of the Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 2.15) and with the Borrowers being obligated to pay to the respective Lenders any costs of the type referred to in Section 2.11 in connection with any such repayment and/or Borrowing.
(e) At the time of any provision of Incremental Commitments pursuant to this Section 2.15, (i) all dollar thresholds included in any determination made with respect to Excess Availability shall be increased automatically in an amount equal to the percentage by which the Incremental Term Loans shall not be guaranteed by any Subsidiaries of Commitments increase the Borrower that do not guarantee the existing Loans Total Revolving Loan Commitments and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) at the Maturity Date Company’s request, the Maximum Letter of Credit Amount, the Maximum Swingline Amount and the commitments of the Issuing Lenders and the Swingline Lender with respect thereto, shall each be increased, ratably, to take account of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and provided pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender2.15.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments Commitments, in order to fund a Designated Acquisition, in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Lenders (which, in each case, which may include any existing Lender (but Lender; provided that no such existing Lender shall be required obligated to participate in provide any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonCommitments unless it so agrees) willing to provide such Incremental Term Loans Commitments in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 20,000,000 or, if less, the remaining Incremental Amount, and minimum increments in integral multiples of $10,000,000, or remaining permitted amount or, 10,000,000 in each case, such lesser amount approved by the Administrative Agentexcess thereof), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date “Increased Amount Date”) and (iii) whether such notice is delivered).Incremental Commitments are to 52 #96555161v28
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansCommitments; provided that:
that (i) [intentionally omitted], (ii) with respect to Incremental Term Loans, (A) the Incremental Other Term Loans shall not be rank pari passu or junior in right of payment and of security with (including being guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans same Guarantors and shall be being secured on a pari passu or junior basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (Aas) the Maturity Date 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 be calculated to be the 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 Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and (BC) the Weighted Average Life to Maturity of any Incremental 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, upon the effectiveness of any then outstanding Class Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. 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 Borrower other parties hereto, it 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 opinion of the Administrative Agent, to effect 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 contrary. For purposes of clause (except that ii)(A) above, the initial yield on any Incremental Term Loans forming an addition to an existing Class of Term Loans Loan Commitment shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and Administrative Agent to be equal to the Lenders providing such sum of (x) the interest rate margin above Adjusted Term SOFR for loans under the Incremental Term Loan; provided that, Loan Commitment that bear interest based on Adjusted Term SOFR (which shall be increased by the terms amount that any interest rate “floor” applicable to any such Incremental Term Loans 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 (except as expressly permitted above and except 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 covenants doing so (the amount of such discount or other provisions applicable only to periods after the then Latest Maturity Date) are notfee, taken expressed as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit percentage of the then existing LendersIncremental Term Loan Commitment, being referred to herein as “OID”); and, the amount of such OID divided by four.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.12 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses 53 #96555161v28
(ad) and (b) Each 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 and the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) 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 Term Loans, the Lenders shall may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that all Incremental Loans (other than Other Term Loans) in the Borrowings form of such Class additional Term B Loans, when originally made, are held by the Lenders included in each Borrowing of such Class outstanding Term B Loans on a pro pro-rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderbasis.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Altisource Portfolio Solutions S.A.)
Incremental Commitments. (1a) The Borrower mayBorrowers shall have the right, by written notice without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.15) or the Lenders (except for the Issuing Lenders as provided below), to request at any time and from time to time after the Effective Date and prior to the Revolving Commitment Termination Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; provided, that, (i) no Lender shall be obligated to provide an Incremental Commitment, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and has executed and delivered to the Administrative Agent from time Agent, the Company and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to time, request Incremental Term fund any Revolving Loans in excess of its Revolving Loan Commitments not to exceed $100,000,000 from one Commitment (if any) or more Eligible Assigneesparticipate in any Letters of Credit or Swingline Loans in excess of its RL Percentage, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.15; provided, that, the Lenders shall have at least 10 Business Days following the Borrowers’ request for Incremental Commitments to decide whether or not to provide any such Incremental Commitments (and, to the extent that is a Farm Credit any such Lender (whichfails to respond within such 10 Business Day period, in each case, may include any existing Lender (but no such Lender shall be required deemed to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing have rejected to provide such an Incremental Term Loans in their sole discretion Commitment), (such Lendersii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of the Administrative Agent or any other Lender; provided, that, any Person that is not a Lender prior to the effectiveness of its Incremental Commitment shall require the consent of the Administrative Agent, the “Swingline Lender and each Issuing Lender (each of which consents shall not be unreasonably withheld) to provide an Incremental Term Loan Lenders”). Such notice shall set forth Commitment pursuant to this Section 2.15, (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Term Loan Commitments being requested (which shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.15 (including Persons who are Eligible Transferees and will become Lenders) of at least $10,000,000 and minimum increments of $10,000,000, 5,000,000 (or remaining permitted amount or, in each case, such lesser amount approved by that is acceptable to the Administrative Agent), (iiiv) whether the aggregate amount of all Incremental Term Loans Commitments permitted to be borrowed provided pursuant to such this Section 2.15 shall not exceed in the aggregate $25,000,000, (v) the Borrowers shall not increase the Total Revolving Loan Commitment pursuant to this Section 2.15 more than five times, (vi) all Revolving Loans incurred pursuant to an Incremental Term Loan Commitments are Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under the Guaranty, on a pari passu basis with all other Obligations secured by each relevant Security Document and guaranteed under the Guaranty, and (vii) each Lender (including any Person which is an Eligible Transferee who will become a Lender) agreeing to be provide an increase Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in any existing Class of Term Loans or a new Class of Term this Agreement, participate in Swingline Loans and (iiiLetters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving Loans as provided in Section 2.01(a) on a pro rata basis and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)other applicable Credit Documents.
(2b) The Loan At the time of the provision of Incremental Commitments pursuant to this Section 2.15, (i) the Credit Parties, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Borrowers and the Administrative Agent an Incremental Commitment Agreement, appropriately completed (with the effectiveness of the 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 (A) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (B) all Incremental Commitment Requirements have been satisfied, (C) all conditions set forth in this Section 2.15 shall have been satisfied and (D) all other Person whose consent is required conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied) and (ii) the Credit Parties and the Collateral Agent and each Incremental Lender (as provided above applicable) shall execute and deliver to the Administrative Agent an such additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments and any Additional Credit Extension Amendment and such other documentation as Margin are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Term Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, be added to, and have the same terms and conditions as, the Total Revolving Loan Commitment. Each Additional Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Extension Amendment Document.
(d) At the time of any provision of Incremental Commitments pursuant to this clause (d) shall specify Section 2.15, each Borrower shall, in coordination with the terms Administrative Agent, repay outstanding Revolving Loans of certain of the applicable Incremental Term Loans; provided that:
Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Lenders), in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may 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 existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except each case to the extent necessary so that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit all of the then existing Lenders); and
Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan 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, after giving effect to such Incremental Term Loans and any increase in the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such dateTotal Revolving Loan Commitment pursuant to this Section 2.15) and use with the Borrowers being obligated to pay to the respective Lenders any costs of proceeds therefrom, the Borrower would be type referred to in compliance Section 2.11 in connection with Section 8.11 and any such repayment and/or Borrowing.
(ze) At 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 time of any existing Class provision of Term LoansIncremental Commitments pursuant to this Section 2.15, all dollar thresholds included in any determination made with respect to Excess Availability shall be increased automatically in an amount equal to the Lenders shall take any action as may be reasonably required percentage by which the Administrative Agent to ensure that Incremental Commitments increase the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each LenderTotal Revolving Loan Commitments.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, denominated at the option of the Borrowers in Dollars and/or Euro and, in the case of any Incremental Revolving Facility Commitments, any Alternate Currency in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent 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 (which approval shall not be unreasonably withheld) unless no consent would be required for an assignment to such Lenders, the “Incremental Term Loan Lenders”person pursuant to Section 9.04(b)(i)(B). 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 (x) in minimum increments of $5,000,000 and a minimum amount of $10,000,000 25,000,000 and (y) minimum increments of $10,000,000, €5,000,000 and a minimum amount of €25,000,000 if such Incremental Loans are denominated in Euro or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) 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 a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, and (iii) (a) 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 shalltogether with any then outstanding Initial Term Loans form a single Class of) Initial Term B Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentInitial Term Loans (“Other Incremental Term Loans”) and (b) in the cash of Incremental Revolving Facility Commitment, whether such Incremental Revolving Facility Commitments are to be not less than ten Business Days after (x) Initial Revolving Facility Commitments or (y) commitments to make revolving loans with pricing and final maturity different from the date such notice is deliveredRevolving Facility Loans (“Other Incremental Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Assumption Agreement and, such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
that (i) except as to pricing, amortization and final maturity date (which shall, subject to clauses (ii), (iii) and (v) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Incremental Term Loans shall not be guaranteed by any Subsidiaries of have (A) substantially the Borrower that do not guarantee same terms as the existing Initial Term Loans and or (B) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date and no Incremental Revolving Facility shall have a final maturity date, any scheduled amortization or any mandatory commitment reduction that occurs prior to the Latest Maturity Date of the Initial Revolving Facility, (Biii) the Weighted Average Life to Maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
, (iv) except as to pricing and final maturity date (which shall, subject to clause (ii) and (vi) of this proviso, be determined by the Borrowers and the Incremental Term Revolving Facility Lenders in their sole discretion), the Other Incremental Revolving Loans shall have (A) substantially the same terms as the Initial Revolving Facility or (B) such interest ratesother terms as shall be reasonably satisfactory to the Administrative Agent, optional prepayment provisions and fees as may be agreed between (v) in the Lenders providing event that the applicable All-in-Yield for such Incremental Term Loan Commitments and is greater than the Borrower (except that any Incremental All-in-Yield for the existing Initial Term B Loans forming an addition to an by more than 50 basis points, then the Applicable Margin for the existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject , shall be increased to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by extent necessary so that the Borrower and the Lenders providing All-in-Yield for such Incremental Term Loan; provided thatLoan Commitments is no more than 50 basis points higher than the All-in-Yield for the existing Initial Term B Loans, (vi) in the terms applicable case of any Incremental Revolving Facility Commitments in effect prior to the one year anniversary of the Closing Date, in the event that the All-in-Yield (at any analogous point in the Pricing Grid) for such Incremental Revolving Facility Commitment is greater than the All-in-Yield for the existing Revolving Facility by more than 50 basis points, then the Applicable Margin for the existing Revolving Facility shall be increased so that the All-in-Yield for the existing Revolving Facility is no more than 50 basis points less than the All-in-Yield for the Incremental Revolving Facility Commitments, (vii) at the time of and immediately after giving effect to such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Loan Commitments and Loansand/or Incremental Revolving Facility Commitments, as reasonably determined by applicable, no Event of Default or Default shall have occurred and be continuing and (viii) the Borrower representations and warranties set forth in the Loan Documents shall be true and correct in all material respects as of such date (except to the extent such representations and warranties are qualified by “materiality” or “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects), as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that in the case of a Limited Condition Acquisition, the only representations and warranties that will be required to be true and correct in all material respects will be the Specified Representations. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement is shall be amended to the extent (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Dutch Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.22 unless (wi) subject to the limitations in Section 1.07(a) in the case of any Borrowing in connection with a Limited Condition Acquisition, on the date of such effectiveness, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (bii) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (andexcept as otherwise specified in the applicable amendment, 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 and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and (with sufficient copies for each of the Lenders providing such Other Incremental Term Loans or Incremental Revolving Loan Commitments) legal opinions as with respect to such matters as are customary matters, board resolutions, Notes and other customary closing certificates reasonably requested by the Administrative Agent. Upon any increase Agent and consistent with those delivered on the Closing Date under subsection 4.02.
(d) Each of any existing Class of Term Loans, the Lenders shall 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 Incremental Term Loans) in the form of additional Initial Term Loans, when originally made, are included in each Borrowing of outstanding Initial Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments that are Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Initial Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) The Incremental Term Loans and Incremental Revolving Loans shall rank pari passu in right of such Class are held by the Lenders payment and of such Class on a pro rata basis in accordance security with the respective amount of Term Loans of such Class held by each Lenderand Revolving Facility Loans and shall have the same Guarantees.
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