Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent). (b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Global Group, Inc.)
Incremental Commitments. (ai) After The Borrower shall have the Amendment and Restatement Effective Date, the Borrowers may, right to request (by written notice to the Administrative Agent from Agent), at any time to timeafter the Effective Date, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from that one or more Incremental Revolving Lenders (and/or one or more other Persons which may include are Eligible Assignees and which will become Lenders (each, an “Incremental Lender”)) provide an increase in any existing Lender) willing to provide such Incremental Revolving Facility CommitmentsClass of Commitments and/or Term Loans (except as otherwise provided in this clause (d), as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicableas, and in all respects shall become a part of, the applicable Class of Commitments and/or Term Loans hereunder) and, subject to the terms and conditions contained in this Agreement and in the respective commitment agreement with such Incremental Lender, make Term Loans (“Incremental Term Loans”) of the U.S. Revolving Facility or Canadian Revolving Facilityapplicable Class pursuant thereto; it being understood and agreed, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided furtherhowever, that (i) up no Lender shall be obligated to $250 million provide an Incremental Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Revolving Facility Commitments in the aggregate may Commitment such Lender shall not be provided in the form of FILO Commitments, subject obligated to the requirements of clause (b) of this Section 2.21 and fund any Incremental Term Loans; (ii) any Lender (including any Incremental Lender) may so provide an Incremental Commitment without the consent of any other Lender; (iii) each incurrence of Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject pursuant to the requirements of this clause (cd) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in a minimum increments aggregate amount for all Lenders which provide an Incremental Commitment (including any Incremental Lender) of at least $5,000,000 and in integral multiples of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), 1,000,000 in excess thereof; (iiiv) the aggregate amount of Incremental Revolving Facility Commitments, which Commitments to be incurred pursuant to this clause (d) at any time shall not exceed the Maximum Incremental Amount, Amount at such time; (iiiv) the date on up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable to each Incremental Lender in respect of each Incremental Commitment shall be separately agreed to by the Borrower and each such Incremental Lender; (vi) the Incremental Term Loans shall have the same Applicable Margin as the Class of Term Loans to which such Incremental Revolving Facility Term Loans are being added; (vii) the proceeds of all Incremental Term Loans to be made pursuant to any Incremental Commitments are requested shall be used only for the purposes permitted by Section 2.17; (viii) Incremental Term Loans shall have the same Maturity Date as the Class of Term Loans to become effective (the “Increased Amount Date”), (iv) whether which such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and Term Loans are being added; (vix) whether all Loans subsequently incurred pursuant to such Incremental Revolving Facility Commitments will constitute FILO Commitments Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement; (x) no Default or Event of Default then exists or would result therefrom; (xi) all of the representations and warranties contained herein are true and correct in all material respects at such time (it being understood that (x) all FILO Commitments any representation and warranty that is qualified by materiality or Material Adverse Effect shall be requested on a single Increased Amount Date, required to be true and correct in all respects and (y) the any representation and warranty which by its terms is made as of such FILO Commitments, including pricing, a specified date shall be set forth required to be true and correct in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
all material respects (b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facilityall respects, as the case may be) as of such earlier date);(xii) except as otherwise provided above, by such Incremental Commitment and/or Incremental Term Loans shall have the amount same terms as the Class of Commitments and/or Term Loans to which such Incremental Commitment and/or Incremental Term Loans are being added; (xiii) on the date of the making of such new Incremental Revolving Facility Commitments evidenced therebyTerm Loans, except as required by such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans of the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent same type with the Borrowers’ consent same Interest Period of the respective Class on a pro rata basis (not based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding borrowing of Term Loans of the same type with the same Interest Period of the respective Class; (xiv) the Incremental Commitment and Incremental Term Loans must be "fungible" for tax purposes with the Term Loan Facility to be unreasonably withheldwhich it is added; and (xv) and furnished the Borrower agrees to the other parties heretoterminate in full any unutilized Initial Commitments, if any, prior to obtaining any Incremental Commitments. In addition, the Borrowers and each No Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to be effective until the Administrative Agent an amendment to (i) this Agreement, incorporating shall have received a certificate from the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, Chief Financial Officer or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments Treasurer of the FILO Loans at any time when Revolving Loans, and Borrower confirming that the conditions set forth in this Section 2.05(d) have been satisfied.
(ii) Incremental Commitments shall become Commitments (or in the case of an Incremental Commitment to be provided by an existing Lender, an increase in such Lender’s applicable Commitment), under this Agreement pursuant to an amendment (an “Incremental Amendment”) to Section 5.02(b) of the U.S. Collateral this Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Borrower, each Incremental Lender providing such Commitment and the Agent. The Incremental Amendment may, without the consent of any other Lender, effect such amendments to this Agreement as may be necessary or appropriate, in the reasonable opinion of the Agent (as defined thereinacting at the written direction of Required Lenders) in order and the Borrower, to provide for effect the payment provisions of Obligations due to this Section 2.05(d). To the FILO Lenders in a extent reasonably requested by the Agent (acting at the written direction of Required Lenders), the Agent shall have received customary fashion following legal opinions, board resolutions, officers’ certificates and/or solvency certificates consistent with those delivered on the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) Effective Date under Section 3.01 (other than Noticed Bank Productschanges to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Required Lenders).
(iii) To the extent the provisions of the preceding clause (i)(xiii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding borrowings of LIBOR Rate Loans of the respective Class of Term 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 LIBOR Rate Loans of the respective Class and which will end on the last day of such Interest Period). In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Class for funding LIBOR Rate Loans during an existing Interest Period on such basis as may be agreed by the Borrower and the respective Lender or Lenders.
(iv) Notwithstanding anything to the contrary set forth in this Section 2.05(d), the Borrower hereby agrees to offer the existing Lenders a right of first refusal for a period of at least three (3) Business Days to provide any Incremental Commitments on the same terms and conditions offered to any potential Incremental Lender; provided that no Lender shall be obligated to provide such Incremental Commitment.
Appears in 1 contract
Sources: Subordinated Delayed Draw Credit Agreement (Gencorp Inc)
Incremental Commitments. (a) After the Amendment and Restatement Effective DateThe Borrower may, the Borrowers mayfrom time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount Term Loan Commitments, first, from one or more Incremental Revolving Lenders (which may include any existing Lenderin the sole discretion of such Lenders) willing to provide such Incremental Revolving Facility Commitmentsor second, as the case may befrom Eligible Assignees who will become Lenders, in their own discretion; provided, that (i) each an aggregate principal amount for all Incremental Revolving Lender shall be subject Commitments not to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million15,000,000. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 million 100,000 and a minimum amount of $25 million or equal to the remaining Incremental Amount1,000,000), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective and (the “Increased Amount Date”), (iviii) whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility are to be Term Loan Commitments or Canadian Revolving Facility Commitments, and commitments to make term loans with terms different from the Term Loans (v) whether such “Other Term Loans”). All Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments Term Loans shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth made in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)Dollars.
(b) The Borrowers Borrower and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Term Loan Commitment of such Lender. Subject to clause (c) below, each Incremental Revolving LenderAssumption Agreement shall specify the terms of the Incremental Term 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 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 increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except as thereby and any increase to the Applicable Margins required by the last sentence foregoing provisions of this clause (b) and as required by clause (c)paragraph. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheldwithheld or delayed) and furnished to the other parties hereto.
(c) The terms of each Incremental Term Loan shall be as follows:
(i) any Incremental Term 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 Person other than the Credit Parties;
(ii) such Incremental Term Loan shall not mature earlier than the Maturity Date;
(iii) such Incremental Term Loan shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then existing Term Loans;
(iv) such Incremental Term Loans, subject to clauses (ii) and (iii) above, shall have amortization determined by the Borrower and the applicable Incremental Term Lenders;
(v) after giving effect to such Incremental Term Loans, (A) no Default or Event of Default shall 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 Loans, subject to clause (viii) below, shall have an Applicable Margin determined by the Borrower and the 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 the initial Term Loans incurred hereunder, as specified in the applicable Incremental Assumption Agreement; and
(viii) without the prior written consent of the Lenders, for any Incremental Term Loans made on or prior to the date that is eighteen (18) 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 paragraphs (a) and (b) of Section 4.2 shall be satisfied as if it were a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower; and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders) closing certificates, opinions of counsel and other customary documentation reasonably requested by the Administrative Agent.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding LIBOR RateSOFR 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 LIBOR RateSOFR 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 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 Borrower regarding the foregoing and, to the extent practicable, will use commercially reasonable efforts to pursue options that minimize breakage costs). In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.2(b)(i) required to (i) this Agreement, incorporating be made after the FILO Subfacility on customary terms as are reasonably acceptable making of such Incremental Term Loans shall be ratably increased in proportion to the Administrative Agent, including aggregate principal amount of such Incremental Term Loans.
(wf) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting This Section 2.22 shall supersede any provisions in Section 9.08 that relate solely 2.11(b), 9.1 or 9.7(b) to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)contrary.
Appears in 1 contract
Sources: Credit Agreement (Fluent, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 5.0 million and a minimum amount of $25 25.0 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, and (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Loan Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and each Incremental Revolving Lender accepting a FILO Commitment (c) of Section 4.01 shall execute be satisfied and deliver to the Administrative Agent an amendment shall have received a certificate to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on effect dated such date and executed by a standalone basis, and (z) a prohibition on optional prepayments Responsible Officer of the FILO Loans at any time when Revolving LoansCompany, and (ii) an amendment the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.02(b4.02 and such additional 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 Revolving Loans in respect of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed Incremental Revolving Facility Commitments are secured by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of ratably with all other Obligations Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Loans in respect of Bank Products (as defined Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving 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 U.S. Collateral Agreement or Administrative Agent to effect the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)foregoing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Covalence Specialty Adhesives LLC)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that up to (i) up to $250 100 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) $100 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
(c) Incremental European Revolving Commitments shall be established pursuant to an amendment to this Agreement signed by the Company, the other applicable borrowers under such Incremental European Revolving Facility, the Lenders providing such Incremental European Revolving Commitments and the Administrative Agent; provided that (i) the borrowers under any such Incremental European Revolving Facility shall be one or more Restricted Subsidiaries of the Company organized under the laws of the United Kingdom, the Netherlands or Germany, (ii) availability under such Incremental European Revolving Facility shall be based on a borrowing base of the assets of the applicable borrowers and, as a condition to the establishment of an Incremental European Revolving Commitment, the Administrative Agent shall have received the results of a reasonably satisfactory field examination and appraisal with respect to the assets to be included in the borrowing base with respect to such Incremental European Revolving Facility, (iii) the advances rates with respect to the borrowing base applicable to such Incremental European Revolving Facility shall not exceed the advance rates applicable to the Canadian Borrowing Base or the U.S. Borrowing Base, (iv) the eligibility requirements with respect to the assets to be included in the borrowing base applicable to such Incremental European Revolving Facility shall be reasonably acceptable to the Administrative Agent, (v) the Collateral Agent shall have a valid and perfected, first priority Lien in the assets to be included in the borrowing base for the applicable Incremental European Revolving Facility (or substantially all assets, in the case of borrowers organized in certain jurisdictions as determined by the Collateral Agent or as otherwise agreed between the Company and the Collateral Agent), (vi) any Incremental European Revolving Facility shall be guaranteed by the Loan Parties and secured by the Collateral on a pari passu basis with the Obligations, (vii) as a condition to the establishment of an Incremental European Revolving Commitment, each Lender under such Incremental European Revolving Facility shall have received all documentation and other information about the relevant borrower under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and to the extent such borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have received, to the extent requested, a Beneficial Ownership Certification in relation to such borrower, (viii) this Agreement shall be amended such that any and all thresholds or triggers based on Combined Availability or Specified Availability shall take into account the availability with respect to the relevant Incremental European Revolving Facility, (ix) any Incremental European Revolving Facility may include letter of credit or swingline facilities as agreed among the Company, the Administrative Agent and the relevant Lenders, and (x) the terms of such Incremental European Revolving Commitments shall otherwise be substantially similar to the terms applicable to the U.S. Revolving Facility including with respect to maturity and pricing.
(d) Notwithstanding the foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the applicable conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Company and/or the Canadian Borrower, as applicable, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Amendment and Restatement Effective Date under Section 4.02 of the Unamended Credit Agreement and such additional documents and filings (including amendments to the Security Documents) as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with all other Revolving Loans.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis, except that with respect to FILO Commitments, such actions shall ensure FILO Loans in an amount equal to the lesser of (x) the aggregate FILO Commitments or (y) the then-current Borrowing Base applicable to the FILO Subfacility are drawn in full prior to any other Revolving Loans being borrowed at any time. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans or BA Equivalent Loans to Canadian Prime Rate Loans reasonably required by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Global Group Inc)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers mayThe Borrower may 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 Facility Commitments in an and/or (ii) the establishment of Incremental Term Commitments; provided that the aggregate amount not to exceed of all the Incremental Amount from Commitments established hereunder during the term of this Agreement shall not exceed $75,000,000. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be 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 notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (which shall not be less than $25,000,000). 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 Lenders (which Commitment or Incremental Term Commitment may include any existing Lender) willing elect or decline, in its sole discretion, to provide such Incremental Revolving Facility CommitmentsCommitment 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 and, in the case of any proposed Incremental Revolving Lender, the Issuing Bank and the Swingline Lender (such approval not to be unreasonably withheld).
(b) The terms and conditions of any Incremental Revolving Commitments and of the Loans and other extensions of credit to be made thereunder shall be identical to those of the original Commitments and Revolving Loans and other extensions of credit made hereunder, and shall be treated as a single class with such Commitments and Loans, and if the Borrower determines to increase the interest rates or fees payable in respect of Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, such increase shall only be permitted if the interest rates or fees payable in respect of the original Commitments and Loans and other extensions of credit made hereunder, as applicable, shall be increased to equal such interest rates or fees payable in respect of such Incremental Revolving Commitments or Loans and other extensions of credit, as the case may be. Any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be on such terms as the Administrative Agent, in their own discretionthe Borrower and the Incremental Term Lenders may agree; provided, that (i) all Incremental Term Loans shall bear interest on the same basis as the Revolving Credit Loans, but with such adjustments to the spreads set forth in the definition of “Applicable Rate” as the Administrative Agent, the Borrower and the Incremental Term Lenders may agree upon; provided, that if the Weighted Average Yield for any Incremental Term Loans shall at any time exceed by more than 0.50% per annum the Weighted Average Yield for Revolving Credit Loans or any other Class of Incremental Term Loans, then the Applicable Rate for Revolving Loans or such other Class of Incremental Term Loans shall automatically be increased to reduce such excess to 0.50% per annum, (ii) Incremental Term Loans may amortize, and may have the benefit of mandatory prepayment events, on terms customary at the time of the establishment thereof for “Tranche A” term loans, but may not mature prior to the Maturity Date and (iii) Incremental Term Loans shall not have the benefit of any representations or warranties, affirmative or negative covenants or Events of Default that do not equally benefit all other Classes of Loans hereunder.
(c) Incremental Commitments shall be established pursuant to one or more Incremental Commitment Agreements executed and delivered by the Borrower, each Incremental Revolving Lender providing an Incremental Commitment and the Administrative Agent; provided that no Incremental Commitments shall become effective unless such Incremental Commitments amount to at least $25,000,000 in the aggregate and unless on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments, (i) no Default shall have occurred and be continuing, (ii) 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, in each case on and as of such date, 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 and (iii) the Borrower shall have delivered to the Administrative Agent such legal opinions, evidence of authority, officer’s certificates and other documents as shall have been requested by the Administrative Agent. Each Incremental Commitment Agreement may, without the consent of any Lender, effect such amendments to, or amend and restate, this Agreement and the other Loan Documents (including provisions hereof or thereof that would otherwise require the consent of all the Lenders) as may be necessary or appropriate, in the opinion of the Administrative Agent, to provide for the applicable Incremental Commitments and the Loans and other extensions of credit thereunder and otherwise to give effect to the provisions of this Section; provided that no such Incremental Commitment Agreement shall effect any amendment or waiver referred to in Section 9.02(b)(ii)(A), (B) or (C) without the consent of each Lender affected thereby.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be subject deemed to the approval be a “Lender” (and a Lender in respect of Commitments and Loans of the Administrative Agent applicable Class) hereunder, and henceforth shall be entitled to all the rights of and benefits accruing to, and bound by all agreements and other obligations of, a Lender (which approval shall not be unreasonably withheldor a Lender in respect of Commitments and Loans of the applicable Class) unless hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender is already has a LenderCommitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”.
(e) On the date of effectiveness of any Incremental Revolving Commitments (the “Incremental Revolving Commitment Effective Date”), (i) the aggregate principal amount of the Revolving Loans outstanding immediately prior to such effectiveness (the “Outstanding Borrowings”) shall be deemed to be repaid; (ii) each Incremental Revolving Facility Commitment Lender that shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become have been a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable Lender prior to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject Commitment Effective Date shall pay to the requirements Administrative Agent in same day funds an amount equal to the difference between (A) the product of clause (b1) of this Section 2.21 and such Lender’s Applicable Percentage (ii) calculated after giving effect to the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause ) multiplied by (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the Incremental Revolving Facility Commitments being requested Commitments) multiplied by (which shall be in minimum increments of $5 million and a minimum 2) the amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, Outstanding Borrowings; (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender that shall execute and deliver not have been a Lender prior to the Incremental Revolving Commitment Effective Date shall pay to the Administrative Agent in same day funds an amount equal to the product of (A) such Incremental Assumption Agreement Revolving Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments) multiplied by (B) the amount of the Subsequent Borrowings; (iv) after the Administrative Agent receives the funds specified in clauses (ii) and such other documentation as (iii) above, the Administrative Agent shall reasonably specify pay to evidence each Lender that is not an Incremental Revolving Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the Incremental Revolving Facility Commitments) multiplied by (2) the amount of the Outstanding Borrowings, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Subsequent Borrowings; (v) after the effectiveness of the Incremental Revolving Commitments, the Borrower shall be deemed to have made new Borrowings (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Outstanding Borrowings and of the Types and for the Interest Periods specified in a borrowing request delivered in accordance with Section 2.03; (vi) each Lender shall be deemed to hold its Applicable Percentage of each Subsequent Borrowing (calculated after giving effect to the Incremental Revolving Commitments); and (vii) the Borrower shall pay to each Lender any and all accrued but unpaid interest on the Outstanding Borrowings. The deemed payments made pursuant to clause (i) above in respect of each Eurocurrency Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.15 if the Incremental Revolving Commitment Effective Date occurs other than on the last day of the Interest Period relating thereto.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Commitment Agreement, each Lender holding an Incremental Term Commitment shall make a loan to the Borrower in an amount equal to such Incremental Revolving Lender. Each Term Commitment on the date specified in such Incremental Commitment Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the parties hereto hereby agrees that upon Borrower referred to in Section 2.20(a) and of the effectiveness of any Incremental Assumption AgreementCommitments, this Agreement shall be deemed amended to in each case advising the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount Lenders of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) details thereof and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) Applicable Percentages of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)after giving effect thereto.
Appears in 1 contract
Sources: Credit Agreement (Shutterfly Inc)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Term Loan Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Term Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Term Loans in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 million 5,000,000 and a minimum amount of $25 million 25,000,000 or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iviii) whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility are to be Term B Loan Commitments or Canadian Revolving Facility Commitments, and commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Term Loan Commitment of such Incremental Revolving Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent; provided that, only with respect to Other Term Loans incurred within eighteen months after the Closing Date, if the initial yield on the Other Term Loans (as determined by the Administrative Agent as set forth below) 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 (A) the Applicable Margin then in effect for Eurodollar Rate Loans increased by the amount that any “Eurodollar floor” applicable to such Eurodollar Rate Loans on such date would exceed the Eurodollar Base Rate that would be in effect for a three-month Interest Period commencing on such date plus (B) 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, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date, and (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (c)provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, it being understood that such Incremental Assumption Agreement may, without the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to opinion of the Administrative Agent, including to effect the provisions of this Section 2.12. For purposes of clause (wi) reallocations of outstanding Revolving Loansabove, if necessary, to evidence the initial Borrowing under yield on any Incremental Term Loan Commitment shall be determined by the FILO Subfacility, Administrative Agent to be equal to the sum of (x) the addition of voting provisions interest rate margin above the Eurodollar Rate for loans under the Incremental Term Loan Commitment that bear interest based on the Eurodollar Rate (which shall be increased by the amount that any “Eurodollar floor” applicable to such Incremental Term Loans on the date such Incremental Term Loans are made would exceed the Eurodollar Rate that would be in Section 9.08 that relate solely to the FILO Subfacility, effect for a three month Interest Period commencing on such date) and (y) if the addition Incremental Term Loan Commitment is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for doing so (the amount of assignment provisions such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four).
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 9.04 allowing for 5.01 shall be satisfied or waived and the assignment Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of Revolving Facility Commitmentsthe Borrower, or FILO Commitments(ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the case Administrative Agent may bereasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, on a standalone basisto the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans, (iii) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ziv) a prohibition on optional prepayments before and after giving effect to any Incremental Term Loans (including any Other Term Loan), the aggregate par principal amount directly held by all Affiliated Lenders shall not, collectively, exceed 25.0% of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) aggregate par principal of the U.S. Collateral Agreement or Section 5.02(bthen outstanding principal amount of all Term Loans (including any Incremental Term Loans).
(d) Each of the Canadian Collateral Agreement, parties hereto hereby agrees that the Administrative Agent may take any and all action as applicable, executed by the Collateral Agent (as defined therein) in order may be reasonably necessary to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of ensure that all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) Incremental Term Loans (other than Noticed Bank Products)Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans on a pro rata basis. The Borrower agrees that Section 3.05 shall apply to any conversion of Eurodollar Rate Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Incremental Commitments. (a) After Each Incremental Lender party hereto hereby agrees to commit to provide its respective Incremental Commitment as set forth on Schedule 1 annexed hereto, on the Amendment terms and Restatement Effective Date, the Borrowers may, by written notice subject to the Administrative Agent from time to timeconditions set forth below.
(b) On the Effective Date (as defined below), request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each of the existing Lenders that is not an Incremental Revolving Lender shall be subject deemed to assign to each of the Incremental Lenders (including those that are existing Lenders), and each of the Incremental Lenders shall be deemed to purchase from each of the applicable existing Lenders, for, in the case of Loans, L/C Advances and Swingline Loans funded by the existing Lenders (other than, in the case of Swingline Loans, the Swingline Lender), the principal amount thereof, and, in the case of unfunded participations of the existing Lenders in Letters of Credit and Swingline Loans, no consideration, such interests in the outstanding Loans and participations in Letters of Credit and Swingline Loans outstanding on the Effective Date that will result in, after giving effect to all such deemed assignments and purchases, such Loans and participations in Letters of Credit and Swingline Loans being held by all Lenders ratably in accordance with their Commitments after giving effect to the approval addition of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a LenderCommitments to the Aggregate Commitments, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments be deemed for all purposes a Commitment and each Loan made thereunder shall be on deemed, for all purposes, a Loan and have the same terms (other than upfront fees paid to the Incremental Lenders) as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects Loans and (iii) each Incremental Lender (that is not an existing Lender) shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable Lender with respect to the existing Revolving Facility Commitments that is being increased by such and all matters relating thereto.
(c) Each Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that Lender (i) up to $250 million confirms that it has received a copy of the Incremental Revolving Facility Commitments in Credit Agreement and the aggregate may be provided in other Loan Documents, together with copies of the form of FILO Commitments, subject financial statements referred to the requirements of clause (b) of therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Section 2.21 and Agreement; (ii) agrees that it will, independently and without reliance upon the Incremental Revolving Facility Commitments may be Administrative Agent or any other Lender or agent thereunder and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21Credit Agreement; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) appoints and authorizes the date Administrative Agent to take such action as agent on which its behalf and to exercise such Incremental Revolving Facility Commitments powers under the Credit Agreement and the other Loan Documents as are requested delegated to become effective (Administrative Agent by the “Increased Amount Date”)terms thereof, together with such powers as are reasonably incidental thereto; and (iv) whether such Incremental Revolving Facility Commitments agrees that it will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) perform in accordance with their terms all FILO Commitments shall be requested on a single Increased Amount Date, and (y) of the obligations which by the terms of such FILO Commitmentsthe Credit Agreement are required to be performed by it as a Lender.
(d) For purposes of the Credit Agreement, including pricing, shall be set forth in such notice, if applicable, and the initial notice address of each Incremental Lender that is not an existing Lender shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)set forth below its signature below.
(be) The Borrowers and For each Incremental Revolving Lender shall execute that is not an existing Lender and is a Foreign Lender, delivered herewith to Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Incremental Lender may be required to deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify pursuant to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Section 3.01(e) of the parties hereto hereby agrees that upon Credit Agreement.
(f) Immediately after the effectiveness of any Incremental Assumption AgreementEffective Date, this each Lender’s Commitments pursuant to the Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties set forth on Schedule 2 hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
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Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers 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 Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; providedprovided that in the case of Incremental Revolving Facility Commitments either, that at the election of the Borrower, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including Administrative Agent shall withhold approval if any of the Pricing Grid) and the Commitment Fee applicable L/C Issuers object to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreasedLender) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and or (ii) the Letter of Credit Commitment may not be allocated under, and no Letters of Credit may be requested by the Borrower under, such Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. 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 5.0 million and a minimum amount of $25 20.0 million or equal to the remaining Incremental AmountAmount or in each case such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with terms identical to Term B Loans or Term B-1 Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Term B Loans or Term B-1 Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be commitments to make additional Revolving Facility Commitments Loans on the same terms as the Initial Revolving Loans or Canadian commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Facility Commitments, and Loans (v) whether such Incremental “Other Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentLoans”).
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that
(i) except as to pricing, amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the Term B-1 Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, 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 have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B-1 Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Term Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrower) or (z) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans and the Term B-1 Loans, or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans and the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and the Term B-1 Loans and shall not be subject to clause (viii) below),
(iii) the final maturity date of any Other Term Loans shall be no earlier than the Term B-1 Facility Maturity Date in effect on the date of incurrence (provided that this clause (iii) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term B-1 Facility Maturity Date in effect on the date of incurrence),
(iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 Loans (without giving effect to any amortization or prepayments on the Term B-1 Loans or Other Term Loans) (provided that this clause (iv) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term B-1 Facility Maturity Date in effect on the date of incurrence),
(v) except as to pricing, final maturity date, participation in voluntary and mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the Revolving Facility Maturity Date with respect to the Initial Revolving Loans existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) and (vii) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than the terms and conditions, taken as a whole, applicable to the Initial Revolving Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrower) or (z) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to Section 2.21(a) that (w) is a broadly syndicated U.S. dollar denominated term “B” loan incurred by the Borrower, (x) ranks pari passu in right of security with the Term B-1 Loans, (y) is incurred prior to the six-month anniversary of the Second Amendment Effective Date and (z) has a scheduled outside maturity date less than two years after the Term B-1 Facility Maturity Date, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Second Amendment Effective Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Second Amendment Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the higher of Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time and the “SOFR floor” applicable to the initial Term B-1 Loans, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding,
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the Collateral; and
(xi) any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced therebythereby as provided for in Section 9.08(e) (including, except without limitation, any amendment to Section 2.10(a) as required by may be necessary to reflect the last sentence amortization of this clause (b) and as required by clause (cany such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, the Borrowers and each no Incremental Term Loan Commitment or Incremental Revolving Lender accepting a FILO Facility Commitment shall execute become effective under this Section 2.21 unless on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, no Event of Default shall have occurred and deliver to be continuing or would result therefrom and the Administrative Agent an amendment shall have received a certificate to that effect 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 or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrower) or (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable (with respect to the Administrative AgentBorrower) shall have occurred and be continuing or would result therefrom.
(d) On the date of the making of any Incremental Term Loans that will be added to any Class of then existing Term Loans, including and notwithstanding anything to the contrary set forth in Section 2.07 or Section 2.13, such Incremental Term Loans shall be added to (wand constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) reallocations each Borrowing of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition Term Loans of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, such Class on a standalone basispro rata basis (based on the relative sizes of such Borrowings), and so that each Incremental Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause may result in new Incremental Term Loans having Interest Periods (zthe duration of which may be less than one month) a prohibition on optional prepayments that begin during an Interest Period then applicable to outstanding Term Benchmark Loans of the FILO relevant Class and which end on the last day of such Interest Period. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans at any time (other than Other Term Loans), when Revolving Loansoriginally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Facility Loans in respect of Bank Products Incremental Revolving Facility Commitments (as defined other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Term Benchmark Loans denominated in Dollars to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the U.S. Collateral Agreement or case of an offer to the Canadian Collateral AgreementLenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and/or to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing or reducing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other than Noticed Bank Products).modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extende
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Incremental Commitments. (a) After At any time prior to the Amendment repayment in full of all Loans and Restatement Effective Datethe termination of all Commitments hereunder, the Borrowers Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from that one or more Incremental Revolving Lenders Persons (which may include any the then-existing Lender) willing Lenders; provided that no Lender shall be obligated to provide such Incremental Revolving Facility Commitments and may elect or decline in its sole discretion to provide Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each establish Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Credit Commitments or the Canadian Revolving Facility Incremental Term Loan Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin under this paragraph (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amounta), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments 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 requested on a single Increased Amount Date, 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 terms Borrower may agree to accept less than the amount of such FILO Commitments, including pricing, any proposed Incremental Commitment. The minimum aggregate principal amount of Incremental Commitments established pursuant to any Incremental Amendment shall be set forth in $10,000,000 (or such notice, if applicable, and shall lesser amount as may be as agreed by the relevant Administrative Agent). In no event shall the aggregate amount of any Incremental Revolving LendersCommitments established at any time pursuant to this clause (a) exceed the Maximum Incremental Amount at such time. Incremental Commitments shall be established pursuant to an amendment, supplement or amendment and restatement (an “Incremental Amendment”) to this Agreement and, as appropriate, the Borrowersother Loan 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 necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to (x) effect the provisions of this Section 2.17 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 2.17 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 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 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 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 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.
(b) The Borrowers Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment Commitments of such Incremental Term Loan Lender and/or Incremental Revolving Lender. Each Incremental Amendment shall specify the terms of the parties applicable Incremental Term Loans and/or Incremental Revolving Credit Commitments; provided that:
(i) any commitments to make Incremental Term Loans in the form of 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, (x) 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 (ii) through (vi) below,
(ii) the Other Incremental Term Loans and Incremental Revolving 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 Incremental Term A Loans) shall be no earlier than the Maturity Date applicable to Initial Term B Loans, and, except as to pricing, amortization and final maturity date (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 B Loans or otherwise permitted under this Section 2.17(b), including by clause (vii) hereof, that are (x) not more favorable, taken as a whole, to the Lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans or (y) otherwise reasonably acceptable to the Administrative Agent; provided that any Incremental Term A Facility and Incremental Revolving 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 or Incremental Revolving Loans,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than any Incremental Term A Loans) shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term B Loans,
(v) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Credit Commitments,
(vi) Other Incremental Term Loans and Incremental Revolving Credit Commitments shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral,
(vii) the interest rate margins, fees and, subject to clauses (iii) and (iv) above with respect to Other Incremental Term Loans, amortization schedule applicable to the Loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders or Incremental Term Loan Lenders; provided that 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 Applicable Margins for the Initial Term B 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 B Loans is equal to the All-in Yield for such Incremental Term Loans minus 50 basis points, and
(viii) notwithstanding anything to the contrary, to the extent agreed to by the relevant Lenders and the Borrower, any Incremental Amendment with respect to Incremental Revolving Commitments or Incremental Term A Loans, as applicable, may (i) include, with respect to Incremental Revolving Commitments only, customary provisions with respect to swingline loans and letters of credit to be issued pursuant to such Incremental Revolving Commitments and/or (ii) include one or more financial maintenance covenants that are solely for the benefit of the Lenders with such Incremental Revolving Commitments or Incremental Term A Loans, as applicable, and that may be amended or waived in any manner solely by Lenders with a percentage of such Incremental Revolving Commitments or Incremental Term A Loans, as applicable, specified in such Incremental Amendment and a breach of which would allow such Lenders to terminate such Incremental Revolving Commitments or 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 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 Revolving Commitments or 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 that, upon the effectiveness of any Incremental Assumption AgreementAmendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Commitments evidenced thereby, except as required by . Any amendment to this Agreement or any other Loan Document that is necessary to effect the last sentence provisions of this clause (b) and as required by clause (c)Section 2.17 shall be deemed “Loan Documents” hereunder. Any such deemed amendment may be memorialized in writing by Each of the parties hereto hereby agrees that the Administrative Agent with the Borrowers’ consent (not may take any and all action as may be reasonably necessary to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to ensure that (i) this Agreementall Incremental Term Loans (other than Other Incremental Term Loans and Incremental Term A Loans), incorporating when originally made, are included in each Borrowing of the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, Initial Term B Loans on a standalone pro rata basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Loans in respect of Bank Products (as defined Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the U.S. Collateral Agreement applicable Class of outstanding Revolving Loans on 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 Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)contrary.
Appears in 1 contract
Sources: Credit Agreement (Maxlinear Inc)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers 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 Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition 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 Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) 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 approval approvals shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionLender. 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 million 5,000,000 and a minimum amount of $25 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective (the “Increased Amount Date”)effective, (iviii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be (x) commitments to make additional Revolving Facility Commitments Loans on the same terms as the Initial Revolving Loans or Canadian (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Facility Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, and (v) whether such Incremental Revolving Facility Term Loan Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments shall be requested commitments to make term loans on a single Increased Amount Date, and the same terms as the Term B Loans or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such notice, if applicable, and shall be as agreed by mandatory prepayments and/or other terms different from the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentTerm B Loans (“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(A) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBORSOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBORSOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBOTerm SOFR Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBORSOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBORSOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrower and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the Borrowers conditions set forth in clause (d) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a 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, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under the Restatement Agreement and such additional customary documents and filings (including amendments or supplements to the Mortgages and other Collateral Documents, as applicable, and title date-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents or hereunder) 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 Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be 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 EurocurrencyTerm Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the 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 this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such L▇▇▇▇▇’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) 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 Incremental Revolving Extending Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment 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) this Agreement, incorporating the FILO Subfacility on customary terms except as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).inte
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers mayThe Company may on one or more occasions, by written notice to the Administrative Agent from time (which shall promptly deliver a copy to timeeach of the Lenders), request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and Commitments and/or (ii) Incremental Term Commitments be established, in each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such termscase by an amount not less than $25,000,000; provided that the Applicable Margin (including aggregate amount of all Incremental Commitments established hereunder during the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) term of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments Agreement shall not exceed $100 million200,000,000. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments or the Incremental Term Commitments, as applicable, being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments or Incremental Term Commitments, as applicable, are requested to become effective (which shall be not fewer than 10 days or more than 30 days after the “Increased Amount Date”date of such notice or such other date as shall be mutually agreed by the Administrative Agent and the Company). Incremental Commitments may be provided by any Lender or by one or more banks or other financial institutions identified by the Company; provided that (A) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, (iv) whether in its sole discretion, to provide such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments Commitment or Canadian Revolving Facility Commitments, Incremental Term Commitment and (vB) whether any Person that the Company proposes to become an Incremental Lender, if such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on Person is not already a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricingLender hereunder, shall be set forth subject to the approval of the Administrative Agent and, in such notice, if applicable, and shall be as agreed by the relevant case of any proposed Incremental Revolving LendersLender, the Borrowers, Issuing Bank and the Administrative AgentSwingline Lender (which approval shall not be unreasonably withheld).
(b) . The Borrowers Company and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Commitment Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Lender and/or its status as a Lender hereunder.
(b) The terms and conditions of any Incremental Revolving Commitment and loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and the Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Commitment Agreement, identical to those of the Term Commitments and the Term Loans; provided that (i) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Terms Loans and (ii) no Incremental Term Loan shall mature prior to the Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Commitment Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) On the effective date of any Incremental Revolving Commitments (the “Incremental Revolving Commitment Effective Date”), (i) the aggregate principal amount of the Revolving Loans outstanding (the “Initial Loans”) immediately prior to giving effect to such Incremental Revolving Commitment Effective Date shall be deemed to be paid, (ii) each Incremental Revolving Lender that shall have been a Revolving Lender prior to the Incremental Revolving Commitment Effective Date shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments), multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the Incremental Revolving Commitments), multiplied by (2) the amount of the Initial Loans, (iii) each Incremental Revolving Lender that shall not have been a Revolving Lender prior to the Incremental Revolving Commitment Effective Date shall pay to the Administrative Agent in same day funds an amount equal to the product of (1) such Incremental Revolving Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Subsequent Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Revolving Lender that is not an Incremental Revolving Lender the portion of such funds that is equal to the excess of (A) the product of (1) such Revolving Lender’s Applicable Percentage (calculated without giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Initial Loans, over (B) the product of (1) such Revolving Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Incremental Revolving Commitments, the Company shall be deemed to have made new Borrowings (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Subsequent Borrowing (calculated after giving effect to the Incremental Revolving Commitments) and (vii) the Company shall pay each Revolving Lender any and all accrued but unpaid interest on the Initial Loans. The deemed payments made pursuant to clause (i) above in respect of each Eurocurrency Loan shall be subject to indemnification by the Company pursuant to the provisions of Section 2.16 if the Incremental Revolving Commitment Effective Date occurs other than on the last day of the Interest Period relating thereto and breakage costs result. In the case of any Incremental Revolving Commitments that have become effective at a time when Loans denominated in both Euro and US Dollars shall be outstanding, the amounts payable by the Revolving Lenders pursuant to this paragraph shall be paid in Euro and US Dollars in proportion to the principal amounts of the Euro and US Dollar denominated Revolving Loans outstanding on the Incremental Revolving Commitment Effective Date.
(d) Incremental Commitments established pursuant to this Section shall become effective on the date specified in the notice delivered by the Company pursuant to the second sentence of paragraph (a) above.
(e) Notwithstanding the foregoing, no Incremental Commitments shall become effective under this Section unless, (i) on the date of effectiveness thereof, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied (without giving effect to the phrase “As of the date hereof,” in Section 3.06 or 3.07(b)) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by the chief financial officer of the Company, and (ii) the Administrative Agent shall have received documents consistent with those delivered under clauses (b) and (c) of Section 4.01 as to the corporate power and authority of the Company to borrow hereunder after giving effect to such Incremental Commitment. Each Incremental Commitment Agreement may, without the consent of any Lender other than the applicable Incremental Lenders, effect, by amendment or amendment and restatement, such mechanical amendments (which shall not include amendments to or waivers under Articles V, VI or VII) to this Agreement and the other Loan Documents (including provisions hereof or thereof that would otherwise require the consent of all Lenders) as may be necessary or appropriate, in the opinion of the parties hereto hereby agrees Administrative Agent, to provide for the applicable Incremental Commitments and the loans and other extensions of credit thereunder and otherwise to give effect to the provisions of this Section, including any amendment necessary to treat the applicable Incremental Term Commitments and Incremental Term Loans as a new “Class” of commitments and loans hereunder; provided that no such Incremental Commitment Agreement shall effect any amendment or waiver referred to in Section 9.02(b)(2)(i), (ii) or (iii), or any other amendment or waiver that by the terms of this Agreement requires the consent of each Lender affected thereby (except to the extent each required consent shall have been obtained).
(f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of and benefits accruing to, and bound by all agreements, acknowledgements and other obligations of, a Lender (or a Lender in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”.
(g) Subject to the terms and conditions set forth herein and in the applicable Incremental Commitment Agreement, each Lender holding an Incremental Term Commitment shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Commitment Agreement.
(h) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.10(a) and of the effectiveness of any Incremental Assumption Commitments, in each case advising the Lenders of the details thereof (including each amendment effected pursuant to an Incremental Commitment Agreement) and, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as in the case may beof effectiveness of any Incremental Revolving Commitments, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations Applicable Percentages of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)after giving effect thereto.
Appears in 1 contract
Sources: Credit Agreement (Waters Corp /De/)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers may, The Borrower may by written notice (which may be included in the Additional Credit Extension Amendment itself) to the Administrative Agent from time elect to time, request Incremental seek (w) commitments (“Additional Revolving Commitments”) to increase the Revolving Facility Commitments in an of any Class, (x) commitments (“Additional Term Loan Commitments”) to increase the aggregate principal amount of 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 (“Term B Loan Commitments”) to establish a new Class of Term B Loans; provided that:
(i) the aggregate principal amount of all Incremental Commitments after the Closing Date, together with the aggregate principal amount of Incremental Equivalent Debt incurred after the Closing Date and outstanding at such time, shall not to exceed the Incremental Amount and calculation of the Incremental Amount shall be made on Pro Forma Basis and evidenced by a certificate from one a Financial Officer of Parent or more Incremental Revolving Lenders Borrower;
(which 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 (or such other amount approved by the Administrative Agent) in excess thereof; provided that such amount may include any existing Lender) willing to provide be less than $25,000,000 if such Incremental Revolving Facility Commitments, as amount represents all remaining availability under the case may be, limit set forth in their own discretion; provided, that the preceding clause (i) each Incremental Revolving or is otherwise approved by the Administrative Agent;
(iii) no existing Lender shall be subject required to provide any Incremental Commitments unless it otherwise agrees and no existing Lender (or its Affiliates or Approved Funds) will have any right of first offer or right of first refusal with respect thereto;
(iv) the approval terms of each Incremental Term Facility will be as agreed between the Administrative Agent (which approval shall not be unreasonably withheld) unless applicable Borrowers and the Persons providing such Incremental Term Facility; provided that:
(A) any Additional Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment Commitments shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on have the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased (except that the Lenders providing Additional Revolving Commitments may receive customary upfront fees in connection therewith);
(B) the final maturity date of any Other Term A Loan shall be no earlier than the Term A Facility Maturity Date, and the final maturity date of any Term B Loan shall be no earlier than one year following the Term A Facility Maturity Date, except for Permitted Short Term Debt;
(C) the Weighted Average Life to Maturity of any Other Term A Loan shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term A Loans, and the Weighted Average Life to Maturity of any Term B Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term A Loans, except for Permitted Short Term Debt;
(D) the Other Term A Loans shall share on a pro rata basis (or if agreed by the Incremental Term Lenders providing such Other Term A Loans, on a less than pro rata basis) in any mandatory prepayment or voluntary prepayment of the Term A Loans hereunder, and the Term B Loans shall share on a pro rata basis (or if agreed by the Incremental Term Lenders providing such Term B Loans, on a less than pro rata basis) in any mandatory prepayment or voluntary prepayment of other Term Loans hereunder;
(E) except as to amortization, sharing of prepayments and final maturity date (which shall, subject to clauses (B), (C) and (D) of this proviso, be determined by the Borrower and the then committing Incremental Term Lenders in their sole discretion), the Other Term A Loans shall have (x) the same terms as the then outstanding 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 as determined in the reasonable determination of the Administrative Agent and the Borrower, 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;
(F) except as to pricing, amortization, sharing of prepayments and final maturity date (which shall, subject to clauses (B), (C) and (D) of this proviso, be determined by the Borrower and the then committing Incremental Term Lenders in their sole discretion), (a) the covenants and events of default applicable to Term B Loans shall not be materially more favorable (when taken as a whole) to the Incremental Term Lenders providing the Term B Loans than those applicable to the Term A Facility (except to the extent such terms apply only after the then Latest Maturity Date or such covenants or other terms apply equally for the benefit of the other Lenders holding Term A Loans) as determined in the reasonable determination of the Administrative Agent and the Borrower, (b) at the sole discretion of the Borrower and the Incremental Term Lenders providing the Term B Loans, the Term B Loans may benefit from a prepayment premium not applicable to the other outstanding Facilities and (c) the operational and agency provisions applicable to such Term B Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower; and
(1) the security interest and guaranties benefiting the Incremental Term Loans will rank pari passu in right of payment and security with the existing Facilities, (2) no Person shall guarantee the obligations with respect to any Incremental Term Loans unless such Person is a Loan Party and (3) no Incremental Term Loans will be secured by any property that does not constitute Collateral under the existing Facilities.
(b) The availability of any Incremental Commitments or Incremental Term Loans under this Agreement will be subject solely to the following conditions, subject, for the avoidance of doubt, to Section 1.09, measured (at the election of Parent or Borrower) on the date of the initial borrowing under (or receipt of commitments with respect to) such Facility:
(i) no Default or Event of Default shall have occurred and be continuing; provided that the condition set forth in this clause (i) may be waived or not required (other than with respect to Specified Events of Default) by the Persons providing such Facilities if the proceeds of the initial Borrowings thereunder will be used to finance, in whole or in part, a Permitted Business Acquisition or other Investment permitted hereunder; and
(ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects as of such date, 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 representations and warranties that are qualified by materiality shall be true and correct in all respects); provided that the condition set forth in this clause (ii) may be limited to customary “SunGard” style conditionality by the Persons providing such Facilities if the proceeds of the initial Borrowings thereunder will be used to finance, in whole or in part, a Permitted Business Acquisition or other Investment permitted hereunder.
(c) Each such notice shall specify (x) the date (each, an “Incremental Commitments Effective Date”) on which the Borrower proposes that the Incremental Commitments shall automatically be increased effective, which shall be a Business Day and (but y) the identity of the Persons (each of which shall be an Eligible Person and the consent of the Persons specified in no event decreasedSection 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.
(d) Upon the incurrence of Additional Revolving Commitment pursuant to this Section 2.22, 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 cause any Incremental keep the outstanding Revolving Facility Loans pro rata across all Classes of Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments arising from any nonratable increase in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date . If there is a new borrowing of Revolving Facility Loans on which such Incremental Commitments Effective Date, the Revolving Facility Lenders after giving effect to such Additional Revolving Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether shall make such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth Loans in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agentaccordance with Section 2.01(c).
(be) The Borrowers Incremental Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Incremental Commitments (and each Incremental Revolving the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender shall execute or other Person), and deliver the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Borrower, to effect the provisions of this Section 2.22.
(f) This Section 2.22 shall supersede any provisions in Section 2.19 or Section 9.08 to the contrary. The Administrative Agent shall reasonably specify to evidence and the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of Lenders hereby further agree that the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreementminimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall be deemed amended not apply to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment transactions effected pursuant to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)2.22.
Appears in 1 contract
Sources: Credit Agreement (EVERTEC, Inc.)
Incremental Commitments. (a) After the This Amendment and Restatement Effective Date, the Borrowers may, by written shall also serve as a Commitment Increase activation notice referred to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval Section 2.21 of the Administrative Agent Credit Agreement (which approval shall not be unreasonably withheldthe “Commitment Increase Activation Notice”) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up respect to $250 million of the Incremental Revolving Facility Commitments 60,000,000 in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments. Each Person signatory hereto whose name appears on Annex A hereto (each such Person, an “Incremental Lender”) hereby agrees to provide Incremental Commitments in the amount set forth opposite such Incremental Lender’s name on Annex A hereto under the caption “Incremental Commitment”, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Commitments under the Amended Credit Agreement. The Increased Amount Date, and (y) Facility Closing Date in respect of the terms of such FILO Commitments, including pricing, Incremental Commitments shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)Amendment Effective Date.
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to Borrower, the Administrative Agent an Incremental Assumption Agreement and such other documentation as each Lender party hereto agree to waive the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each 10 Business Day notice requirement set forth in Section 2.21 of the Credit Agreement for this Commitment Increase Activation Notice.
(c) Each Incremental Lender that was not a Lender under the Credit Agreement immediately prior to the Amendment Effective Date (each, a “New Lender”) agrees that on the Amendment Effective Date, it shall become a Lender under the Amended Credit Agreement having the Commitment under the Amended Credit Agreement set forth on Annex A hereto opposite such New Lender’s name under the caption “Incremental Commitment” and shall be bound by the obligations of the Amended Credit Agreement as a Lender thereunder and entitled to the benefits of the Amended Credit Agreement, effective as of the Amendment Effective Date. The parties hereto hereby agrees agree that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (bc) and shall serve as the New Lender Supplement required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments 2.21 of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Credit Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products each New Lender.
(as defined in d) The Administrative Agent hereby consents to each New Lender becoming a Lender under the U.S. Collateral Amended Credit Agreement or pursuant to Section 2.21 of the Canadian Collateral Credit Agreement, as applicable) (other than Noticed Bank Products).
Appears in 1 contract
Sources: Omnibus Amendment (AV Homes, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers may, by written notice to the Administrative Agent on up to two (2) occasions during the period from time the Restatement Date to timethe Extension Effective Date, request Incremental Revolving Facility incremental Commitments in an amount not to exceed the Incremental Amount aggregate amount of $15,000,000 from one or more Incremental Revolving additional Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, incremental Commitments in their own discretion; provided, that (i) each Incremental Revolving incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving incremental Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments an Affiliate of a Lender or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionan Approved Fund. Such notice shall set forth (i) the amount of the Incremental Revolving Facility incremental Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount)requested, (ii) the aggregate amount of Incremental Revolving Facility all incremental Commitments, which when taken together with all other incremental Commitments, shall not exceed $15,000,000 in the aggregate (the “Incremental AmountLimit”), and (iii) the date on which such Incremental Revolving Facility incremental Commitments are requested to become effective (the “Increased Amount Date”). Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) with the terms assistance of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and to arrange a syndicate of Lenders willing to hold the Administrative Agent)requested incremental Commitments.
(b) The Borrowers and each Incremental Revolving incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility incremental Commitment of such Incremental Revolving incremental Lender. Each such documentation shall specify the terms of the applicable incremental Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Commitments shall thereafter be Commitments with the same terms as the Commitments (including as to pricing and maturity). Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreementsuch documentation, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility incremental Commitments evidenced thereby, except and new Notes shall be issued and Borrowers shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by Borrowers upon any such incremental Commitments shall be agreed upon by Administrative Agent, the Lenders with incremental Commitments and Borrowers at the time of such increase. Nothing in this Section 2.20 shall constitute or be deemed to constitute an agreement by any Lender to increase its Commitments hereunder.
(c) Notwithstanding the foregoing, no incremental Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.02 shall be satisfied and Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of Borrowers, (ii) Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the last sentence relevant amendment or other documentation consistent with those delivered on the Original Closing Date under Section 5.01 and such additional customary documents and filings as Administrative Agent may reasonably require, including amendments to Mortgages and date downs to, and incremental increases in the amounts of this clause coverage under, the various Title Policies, and (biii) Borrowers shall be in pro forma compliance with the covenants set forth in Section 8.07 and the Loan to Value Ratio for all of the Collateral Properties, shall be no more than sixty percent (60%), in each case after giving effect to such incremental Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as required if made and applied on such date, and Administrative Agent shall have received a certificate to that effect dated such date and executed by clause a Responsible Officer of Borrowers, showing such calculations in reasonable detail.
(c). Any such deemed amendment may be memorialized in writing by d) Each of the parties hereto hereby agrees that the Administrative Agent with the Borrowers’ consent (not may take any and all action as may be reasonably necessary to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 ensure that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO all Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products incremental Commitments, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. Borrowers agree that Section 4.05 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Lenders to effect the foregoing.
(as defined e) Without limitation of the foregoing, Borrowers may add additional Collateral Property in accordance with the U.S. requirements of Section 2.21 (including the consent of Required Lenders), and obtain an incremental Commitment to finance such new Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)Property.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Term Loan Commitments in an amount not to exceed the Incremental Amount available immediately prior to the time such Incremental Term Loan Commitments are established from one or more Incremental Revolving Term Lenders (which may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Term Loans in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 million 5,000,000 and a minimum amount of $25 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective effective, and (the “Increased Amount Date”), (iviii) whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments commitments to make term loans with terms identical to (and which shall be requested on together with any then outstanding Second-Out Term Loans form a single Increased Amount DateClass of) the Second-Out Term Loans, and as applicable, or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such notice, if applicable, and shall be as agreed by mandatory prepayments and/or other terms different from the relevant Second-Out Term Loans (“Other Incremental Revolving Lenders, the Borrowers, and the Administrative AgentTerm Loans”).
(b) The Borrowers and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Term Loan Commitment of such Incremental Revolving Term Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Term Loans; provided, that:
(i) any commitments to make additional Second-Out Term Loans shall have the same terms as the Second-Out Term Loans and shall form part of the same Class Second-Out Term Loans,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.19 shall rank equally and ratably in right of security and payment with the Second-Out Term Loans (including as to waterfall and payment priority relative to any then outstanding First-Out Term Loans pursuant to a Permitted First Lien Intercreditor) or, at the option of the Lux Borrower, shall rank junior in right of security and/or payment with the Second-Out Term Loans (including as to waterfall and payment pursuant to an Intercreditor Agreement) (provided, that if such Other Incremental Term Loans rank junior in right of security and/or payment with the Second-Out Term Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date, participation in voluntary or mandatory prepayments and ranking as to security and payment (which shall, subject to the other clauses of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), shall have (x) the same terms as the Second-Out Term Loans 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 the Term Loans with the Latest Maturity Date,
(v) [reserved],
(vi) such Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Second-Out Term Loans in any voluntary or mandatory prepayment hereunder,
(vii) there shall be no borrower (other than the Borrowers) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments, and
(viii) Other Incremental Term Loans shall not be secured by any asset of the Parent or its Subsidiaries other than the Collateral. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced therebythereby as provided for in Section 9.08(e); provided that notwithstanding anything to the contrary in this Agreement or in any other Loan Document (including Section 9.08(e)), except as required by holders of Incremental Term Loan Commitments, Incremental Term Loans and Other Incremental Term Loans shall be disregarded for purposes of any consent (or decision not to consent) to any amendment, modification, waiver, consent or other action with respect to any of the last sentence terms of this clause any Loan Document if such Incremental Term Loan Commitments, Incremental Term Loans and/or Other Incremental Term Loans are incurred substantially concurrently with any such consent (bor decision not to consent) and as required by clause or are incurred for the purpose of achieving such consent (cor decision not to consent). 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 collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.19 unless (i) no Default or Event of Default shall exist; provided that, in the event that any tranche of Incremental Term Loans is used to finance a 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 effect to such tranche of Incremental Term Loans); (ii) the representations and warranties of the Parent and the Borrowers set forth in this Agreement shall be true and each correct in all material respects (other than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided that, in the event that the tranche of Incremental Revolving Lender accepting Term Loans is used to finance a FILO Commitment 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 execute be limited to customary “specified representations” and deliver those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of the Lenders and only to the extent that the Parent or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations; and (iii) the Administrative Agent an amendment shall have received documents and legal opinions consistent with those required to (i) this Agreement, incorporating be delivered on the FILO Subfacility on customary terms Closing Date as to such matters as are reasonably acceptable requested by the Administrative Agent (at the Direction of the Required Lenders) and such additional customary documents and filings (including amendments or supplements to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, Mortgages and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreementother Security Documents, as applicable, executed and title date-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Security Documents or hereunder) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans are secured by Liens on the Collateral Agent ratably with (as defined therein) in order to provide for the payment of Obligations due or, to the FILO Lenders extent set forth in a customary fashion following the payment in full applicable Incremental Assumption Agreement, junior to) one or more Classes of all other Obligations then-existing Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(d) Each of the Revolving Lenders parties hereto hereby agrees that the Administrative Agent may take any and cash collateralization of outstanding Letters of Credit, but prior all action as may be reasonably necessary to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) ensure that all Incremental Term Loans (other than Noticed Bank ProductsOther Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis. The Borrowers agree that Section 2.14 shall apply to any conversion of SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Mallinckrodt PLC)
Incremental Commitments. On and after (ax) After the Delayed Draw Termination Date or (y) solely in connection with an Incremental Term Loan incurred to consummate the ▇▇▇▇▇▇▇ Acquisition, the Tenth Amendment and Restatement Effective Date, the Borrowers mayBorrower may at any time or from time to time, by written notice to the Administrative Agent from time to time(an “Incremental Term Loan Request”), request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (new commitments of Term Loans which may include be of the same Class as any existing Lenderoutstanding Term Loans (an “Incremental Term Loan Increase”) willing or a new Class of term loans (collectively with any Incremental Term Loan Increase, the “Incremental Term Loan Commitments”). The Administrative Agent shall promptly forward any Incremental Term Loan Request to all Lenders, and any interested Lenders shall as soon as practicable, and in any case (but excluding any Incremental Term Loan Request for the incurrence of Incremental Term Loans to consummate the ▇▇▇▇▇▇▇ Acquisition) within ten Business Days (or such shorter period as may be agreed to by the Lender Representative) following receipt of such notice, provide the Borrower and the Administrative Agent a written offer to provide such Incremental Revolving Facility CommitmentsTerm Loan (including portions thereof) with terms and provisions in accordance with this Section 2.17 (any such Lender, as the case may be, in their own discretionan “Increasing Lender”); provided, provided that (i) each other than in the case of any Incremental Revolving Term Loan Request for the incurrence of Incremental Term Loans to consummate the ▇▇▇▇▇▇▇ Acquisition, if no such offer is provided by a Lender within such 10 Business Day-period (or such shorter period as may be agreed to by the Lender Representative), such Lender shall be subject deemed to the approval have declined to exercise such right of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount)offer, (ii) the aggregate amount of Incremental Revolving Facility Commitments, which Borrower shall not exceed the Incremental Amount, be under no obligation to accept any such offer from such Lender and (iii) solely in the date on which case of any Incremental Term Loan Request for the incurrence of Incremental Term Loans to consummate the ▇▇▇▇▇▇▇ Acquisition, unless otherwise agreed to in writing by Blackstone (in its sole discretion), such Incremental Revolving Facility Commitments are requested Term Loans (and the related Incremental Term Loan Commitments) shall only be provided by Blackstone and/or any Blackstone Designee. No Lender shall have any obligation, express or implied, to become effective provide Incremental Term Loans, and any decision by a Lender to provide Incremental Term Loans shall be made in its sole discretion independently from any other Lender. Only the consent of each applicable Lender shall be required for it to provide Incremental Term Loans pursuant to this Section 2.17. The Borrower may accept some or all of the offered amounts or designate new lenders (provided, in any event, such new lender is an Eligible Assignee), as additional Lenders hereunder in accordance with this Section 2.17 (the “Increased Amount DateAdditional Lenders”, and together with the Increasing Lenders and the Lenders providing Incremental Term Loans incurred to consummate the ▇▇▇▇▇▇▇ Acquisition, the “Incremental Lenders”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments which Additional Lenders may provide all or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment portion of such Incremental Revolving LenderTerm Loans. Each The Borrower shall have discretion to adjust the allocation of the parties hereto hereby agrees that upon the effectiveness of any such Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)Incremental Term Loan Commitments incurred to consummate the ▇▇▇▇▇▇▇ Acquisition) among the Increasing Lenders and the Additional Lenders.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender; provided that no such existing Lender shall be obligated to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Commitments in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to 50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iviii) whether such Incremental Commitments are to be Term B Loan Commitments, Revolving Facility Commitments will constitute U.S. Revolving Facility Credit Commitments or Canadian Revolving Facility Commitments, and commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving LenderCredit Commitment Increases shall have the same terms as the existing Revolving Credit Commitments under this Agreement, (ii) with respect to Incremental Term Loans, (A) the Other Term Loans shall rank pari passu in right of payment and of security with (including being guaranteed by the same Guarantors and being secured on a pari passu basis by the same Collateral as) the Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Borrower and the Administrative Agent; provided that with respect to Incremental Term Loans, the interest rates and amortization schedule shall (subject to the following criteria) be determined by the Borrower and the Incremental Term Lenders providing such Incremental Term Loans and, if the initial yield (as determined by the Administrative Agent as set forth below) on the Other Term Loans exceeds by more than 50 basis points (the amount of such excess above 50 basis points being herein referred to as the “Yield Differential”) the interest rate margins then in effect for outstanding Term Loans (which shall be calculated to be the sum of (I) the Applicable Margin then in effect for Eurodollar Rate Loans increased by the amount that any “Eurodollar floor” applicable to such Eurodollar Rate Loans on such date would exceed the Eurodollar Base Rate that would be in effect for a three-month Interest Period commencing on such date plus (II) all upfront or similar fees or original issue discount paid by the Borrower generally to the Lenders who provided the outstanding Term Loans in the primary syndication thereof based on an assumed four-year life to maturity), then the Applicable Margin then in effect for outstanding Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans under the Incremental Term Loan Commitment, (B) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (C) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (c)provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, it being understood that such Incremental Assumption Agreement may, without the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to opinion of the Administrative Agent, including 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 (wii)(A) reallocations of outstanding Revolving Loansabove, if necessary, to evidence the initial Borrowing under yield on any Incremental Term Loan Commitment shall be determined by the FILO Subfacility, Administrative Agent to be equal to the sum of (x) the addition of voting provisions interest rate margin above the Adjusted Eurodollar Rate for loans under the Incremental Term Loan Commitment that bear interest based on the Adjusted Eurodollar Rate (which shall be increased by the amount that any “Eurodollar floor” applicable to such Incremental Term Loans on the date such Incremental Term Loans are made would exceed the Adjusted Eurodollar Rate that would be in Section 9.08 that relate solely to the FILO Subfacility, effect for a three month Interest Period commencing on such date) and (y) if the addition Incremental Term Loan Commitment is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for doing so (the amount of assignment provisions such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 9.04 allowing for 5.01(b) shall be satisfied or waived and the assignment Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 5.02 and such additional customary documents and filings (including amendments to the Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Loans and Incremental Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Facility Credit Commitments, as applicable, (iii) no Default or FILO CommitmentsEvent of Default shall have occurred and be Continuing or would result therefrom, (iv) the Senior Secured Leverage Ratio (as established pursuant to a certificate of an Authorized Officer of the Borrower showing the Senior Secured Leverage Ratio determined in accordance with Section 7.07 as of the last day of the Fiscal Quarter most recently ended for which the financial statements required by Section 6.01(a) or (b), as the case may be, have been (or were required to be) delivered immediately prior to and after giving effect to the incurrence of Incremental Loans and Incremental Commitments) is equal to or less than 3.00:1.00 (assuming in the case of any Revolving Credit Commitment Increase that the entire amount thereof is fully drawn) and (v) there shall have been paid to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including any Person becoming a Lender as part of such Incremental Assumption Agreement on the related Increased Amount Date), as applicable, all fees and expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Increased Amount Date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans on a standalone pro-rata basis. Section 3.05 shall not apply to any conversion of Eurodollar Rate Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. On each Increased Amount Date, each Lender which is providing an Incremental Commitment (i) shall become a “Lender” for all purposes of this Agreement and the other Loan Documents, (ii) shall have, as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) shall make an Incremental Term Loan or provide a Revolving Credit Commitment Increase to the Borrower in a principal amount equal to such Incremental Commitment, and such Incremental Loan or Incremental Commitment shall be a “Loan” or “Commitment” for all purposes of this Agreement and the other Loan Documents.
(ze) Upon each Revolving Credit Commitment Increase pursuant to this Section, (i) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each existing Revolving Credit Lender, if any, and each Incremental Lender, if any, in each case providing a prohibition on optional prepayments portion of the FILO Loans at any time when such Revolving Loans, Credit Commitment Increase and (ii) an amendment if, on the date of such Revolving Credit Commitment Increase, there are any Revolving Credit Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion necessary and appropriate to Section 5.02(b) result in each Revolving Credit Lender having a pro-rata share of the U.S. Collateral Agreement or Section 5.02(b) outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the Canadian Collateral Agreementrevolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increase; provided that any prepayment made in connection with the taking of such steps shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, as applicable, executed by the Collateral Agent (as defined therein) pro-rata borrowing and pro-rata payment requirements contained elsewhere in order this Agreement shall not apply to provide for the payment of Obligations due any transaction that may be effected pursuant to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)immediately preceding sentence.
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Sources: Credit Agreement (Altisource Portfolio Solutions S.A.)
Incremental Commitments. (a) After Each Incremental Lender hereby agrees, severally and not jointly, to make an Incremental Loan to the Amendment and Restatement Borrower on the Incremental Commitment Effective DateDate in Dollars in an aggregate principal amount equal to the amount set forth opposite such Incremental Lender’s name on Schedule I attached hereto (each, an “Incremental Commitment” and, collectively, the Borrowers may“Incremental Commitments”), by written notice to on the Administrative Agent from time to timeterms set forth herein and in the Credit Agreement (as amended hereby), request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be and subject to the approval conditions set forth herein. The Incremental Loans shall be deemed to be “Loans” as defined in the Credit Agreement (as amended hereby) for all purposes of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, Credit Agreement having terms and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee provisions identical to those applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) Loans outstanding immediately prior to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective Commitment Effective Date (the “Increased Amount DateExisting Loans”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers Incremental Loans shall be made as a single borrowing, with an initial Interest Period that commences on the Incremental Commitment Effective Date and each ends on the last day of the Interest Period applicable to the Existing Loans on the Incremental Revolving Commitment Effective Date. During such initial Interest Period, the London Interbank Offered Rate applicable to the Incremental Loans shall be the same London Interbank Offered Rate applicable for the Existing Loans as of the Incremental Commitment Effective Date. Notwithstanding anything to the contrary contained herein or in the Credit Agreement, from and after the Incremental Commitment Effective Date, the Existing Loans and the Incremental Loans shall constitute a single Borrowing of Term Loans for all purposes under the Credit Agreement.
(c) Unless previously terminated, the Incremental Commitments of the Incremental Lenders pursuant to Section 2(a) shall terminate upon the making of the Incremental Loans on the Incremental Commitment Effective Date.
(d) Each Incremental Lender (i) confirms that a copy of the Credit Agreement, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Joinder and make its Incremental Loan, have been made available to such Incremental Lender; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, any joint lead arranger or joint bookrunner, or any other Lender or agent and based on such documents and information as it shall execute deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, including this Joinder; (iii) appoints and deliver authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement as are delegated to the Administrative Agent an Incremental Assumption Agreement by the terms thereof, together with such powers as are reasonably incidental thereto; and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of the parties hereto hereby (iv) acknowledges and agrees that upon the effectiveness of any Incremental Assumption Commitment Effective Date such Incremental Lender shall be a “Lender” and an “Incremental Lender” under, and for all purposes of, the Credit Agreement, this Agreement and shall be deemed amended subject to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, and bound by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basisthereof, and (z) shall perform all the obligations of and shall have all rights of a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, Lender and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)Incremental Lender thereunder.
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Incremental Commitments. (a) After the Amendment and Restatement Effective DateSo long as no Default or Event of Default then exists or would result therefrom, the Borrowers mayBorrower shall have the right to request on one or more occasions that one or more Lenders and/or one or more other Eligible Assignees provide (A) Incremental Term Loan Commitments under a given Tranche of Incremental Term Loans as designated in the Incremental Commitment Agreement in accordance with the provisions of this Agreement and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Incremental Term Loans, pursuant thereto or (B) one or more increases in the Revolving Loan Commitments (“Increased Revolving Loan Commitments”), it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Term Loan Commitment or Increased Revolving Loan Commitment as a result of any such request by written notice the Borrower;
(ii) any Lender or other Eligible Assignee may provide an Incremental Term Loan Commitment without the consent of any other Lender; provided, that any Eligible Assignee that (x) is not a Lender, an affiliate of a Lender or an Approved Fund shall be subject to the consent (not to be unreasonably withheld) of the Administrative Agent from time or (y) is providing an Increased Revolving Loan Commitment shall be subject to timethe consent (not to be unreasonably withheld) of the Administrative Agent, request the Swingline Lender and the Issuing Lenders;
(iii) each provision of Incremental Term Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) of $25,000,000 and each provision of Increased Revolving Facility Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) of $5,000,000;
(iv) after giving effect to the establishment of such Incremental Term Loan Commitments or Increased Revolving Loan Commitments, the Maximum Consolidated Senior Secured Leverage Condition (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in an amount not equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) shall be satisfied on the date such Incremental Term Loan Commitments or Increased Revolving Loan Commitments are established;
(v) each Incremental Commitment Agreement pursuant to exceed which Incremental Term Loan Commitments are being provided shall specifically designate the Tranche of the Incremental Amount from one or more Incremental Revolving Lenders Term Loan Commitments being provided thereunder (which may include Tranche shall be a new Tranche (i.e., not the same as any existing LenderTranche of Term Loans or Incremental Term Loan Commitments) willing unless the requirements of following Section 1.11(c) are satisfied);
(vi) each Lender agreeing to provide an (x) Incremental Term Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Commitment Agreement as provided in Section 1.01(c) 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 or (y) an Increased Revolving Facility Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, have a Revolving Loan Commitment from and after the date of the related Incremental Commitment Agreement;
(vii) in no event shall the Maturity Date of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be earlier than the Maturity Date of any other Tranche of Loans (or the Revolving Loan Commitments) outstanding at the time such Incremental Term Loans are incurred;
(viii) in no event shall the Weighted Average Life to Maturity of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be less than the Weighted Average Life to Maturity of any other Tranche of Term Loans outstanding at the time such Incremental Term Loans are incurred;
(ix) after giving effect to the establishment of such Incremental Term Loan Commitments and Increased Revolving Loan Commitments, as the case may beBorrower shall be in compliance with Sections 9.08 and 9.09 (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in their own discretionan amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) at such time;
(x) the Applicable Margin, minimum Eurodollar Rate, if any, and minimum Base Rate, if any, for the Incremental Term Loans shall be determined by the Borrower and the applicable Lenders or Eligible Assignees providing such Incremental Term Loans; provided, however, that (i) each the interest rate margins for the Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval Term Loans shall not be unreasonably withheld) greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the InitialTerm B Loans plus 25 basis points (unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee interest rate margins applicable to the existing Revolving Facility Commitments that is being Term Loans are increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of achieve the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amountforegoing), (ii) solely for purposes of the aggregate amount of foregoing clause (i), the interest rate margins applicable to any InitialTerm B Loans or Incremental Revolving Facility Commitments, which Term Loans shall not exceed be deemed to include all upfront or similar fees or original issue discount (but excluding bona fide arrangement fees) payable by the Borrower generally to the Lenders providing such InitialTerm B Loans or such Incremental Amount, Term Loans based on an assumed four-year life to maturity) and (iii) if the date on which lowest permissible Eurodollar Rate is greater than 1.501.00% or the lowest permissible Base Rate is greater than 2.502.00% for such Incremental Revolving Facility Commitments are requested to become effective (Term Loans, the difference between such “Increased Amount Date”)floor” and 1.501.00%, (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments in the case of Eurodollar Loans, or Canadian Revolving Facility Commitments2.502.00%, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) in the terms case of such FILO Commitments, including pricingBase Rate Loans, shall be set forth in such noticeequated to interest rate margin for purposes of clause (i) above;
(xi) except as provided above, if applicable, the terms and conditions applicable to Incremental Term Loans shall be as agreed determined by the relevant Borrower and the Lenders providing such Incremental Revolving LendersTerm Loans; provided that to the extent such terms are materially different from those of the InitialTerm B Loans, the Borrowers, and such terms shall be reasonably satisfactory to the Administrative Agent); and
(xii) the Borrower shall provide the Administrative Agent with notice of each request for Incremental Term Loan Commitments pursuant to this Section 1.11 contemporaneously with the making of each such request.
(b) The Borrowers At the time of any provision of Incremental Term Loan Commitments of a given Tranche pursuant to this Section 1.11, (i) the Borrower, and each Lender or other Eligible Assignee which agrees to provide an Incremental Revolving Lender Term Loan Commitment (each an “Incremental Term Loan Lender”) shall execute (which execution may be in counterparts) and deliver to the Administrative Agent an Incremental Assumption Commitment Agreement (it being understood that a single Incremental Commitment Agreement shall be executed and delivered by all Incremental Term Loan Lenders providing Incremental Term Loan Commitments in response to a particular request for same made by the 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 Term Loan 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) VHS Holdco I and its Subsidiaries shall have delivered (or shall have agreed with the Administrative Agent to deliver within a time period to be agreed after such other documentation Incremental Term Loan Commitments are established, such amendments, modifications and/or supplements to the Security Documents (if any) as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the Security Documents; (iii) the Administrative Agent shall receive an acknowledgment from the Credit Parties that the Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are entitled to the benefits of the applicable Credit Documents; and (iv) the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Administrative Agent (which, unless otherwise requested by the Administrative Agent, may be the Borrower’s General Counsel) and dated such date, covering such matters as the Administrative Agent may reasonably request. The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of the parties hereto hereby agrees that upon the effectiveness of any each Incremental Assumption Commitment Agreement, this Agreement shall be deemed amended .
(c) Notwithstanding anything to the extent (but only to contrary contained above, the extent) necessary to increase the U.S. Revolving Facility Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Canadian Revolving FacilityIncremental Term Loan Lenders, as the case may be, by pursuant to each Incremental Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement, which designation may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., ▇-▇, ▇-▇, ▇-▇, ▇-▇, etc.), provided that the parties to a given Incremental Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Commitment Agreement shall have the same Maturity Date and the same Weighted Average Life to Maturity as the Tranche of Term Loans to which the new Incremental Term Loans are being added, and shall bear interest at the same rates (i.e., have the same Applicable Margins and other interest rate terms) applicable to such Tranche;
(ii) the new Incremental Term Loans shall have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Revolving Facility Commitments evidenced therebyTerm Loans are being added, except thereby increasing the amount of each then remaining Scheduled Term Loan Repayment of the respective Tranche proportionately, provided that any Scheduled Term Loan Repayments relating to Incremental Term Loans being added to the Tranche of InitialTerm B Loans shall be determined in accordance with Section 4.02(b)); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 1.02, such Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the respective Tranche on 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 so that the existing Lenders with respect to such Tranche continue to have the same participation (by amount) in each Borrowing as required by they had before the making of the new Incremental Term Loans of such Tranche. To the extent the provisions of the preceding clause (iii) require that Lenders making new Incremental Term Loans add the same 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 sentence day of such Interest Period).
(d) Upon each increase in the Revolving Loan Commitments pursuant to this clause (b) Section 2.11, each Lender with a Revolving Loan Commitment immediately prior to such increase will automatically and as required by clause (c). Any without further act be deemed to have assigned to each Lender providing an Increased Revolving Loan Commitment, and each such Lender with an Increased Revolving Loan Commitment will automatically and without further act be deemed to have assumed, a portion of such existing Lender’s participations hereunder in the Letter of Credit Outstandings and Swingline Loans such that, after giving effect to each such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) assignment and furnished to the other parties hereto. In additionassumption of participations, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to percentage of the Administrative Agent an amendment to aggregate outstanding (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations participations hereunder in Letter of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, Credit Outstandings and (ii) an amendment participations hereunder in Swingline Loans held by each Lender with a Revolving Loan Commitment will equal the RL Percentage of such additional Lender (after giving effect to Section 5.02(bsuch Increased Revolving Loan Commitments) and (b) if, on the date of the U.S. Collateral Agreement such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due prior to the FILO Lenders in a customary fashion following effectiveness of such Increased Revolving Loan Commitment be prepaid from the payment in full proceeds of all other Obligations of additional Revolving Loans made hereunder (reflecting such Increased Revolving Loan Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.08. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and cash collateralization of outstanding Letters of Credit, but prior pro rata payment requirements contained elsewhere in this Agreement shall not apply to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or transactions effected pursuant to the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)immediately preceding sentence.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers mayThe Borrower may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request (i) Incremental Revolving Facility Term Commitments in an aggregate amount not to exceed the Incremental Commitment Amount from one or more financial institutions willing to become Incremental Term Lenders, (ii) Incremental Revolving Commitments in an aggregate amount not to exceed the Incremental Commitment Amount from one or more financial institutions willing to become Incremental Revolving Lenders and (which may include any existing Lenderiii) Incremental Tranche A LC Commitments in an aggregate amount not to exceed the Incremental Commitment Amount from one or more financial institutions willing to provide such become Incremental Tranche A LC Lenders, provided that each Incremental Lender, if not already a Lender hereunder, shall be reasonably acceptable to (x) the Administrative Agent, (y) in the case of Incremental Revolving Facility CommitmentsLenders and Incremental Tranche A LC Lenders, as each Issuing Bank and (z) in the case may be, in their own discretion; provided, that (i) each of Incremental Revolving Lender shall be subject to Lenders, the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Swingline Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (iA) the amount of the Incremental Term Commitments, Incremental Revolving Facility Commitments or Incremental Tranche A LC Commitments, as applicable, being requested (which shall be in minimum increments integral multiples of $5 million 1,000,000 and a minimum amount of not less than $25 million 25,000,000, or equal to the remaining Incremental Commitment Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iiiB) the date on which such Incremental Revolving Facility Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the “Increased Amount Date”date of such notice (which time periods for notice may be modified or waived by the Administrative Agent in its discretion)) and (C) in the case of Incremental Term Loan Commitments, (iv) whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility Commitments are to be commitments to make term loans on terms identical to the Term Loans outstanding on the date of making of such new term loans or Canadian Revolving Facility Commitmentscommitments to make term loans with economic terms (such as pricing, maturities and amortization schedules) that are different from such outstanding Term Loans (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested but otherwise on a single Increased Amount Date, and (y) the terms of identical to such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agentoutstanding Term Loans) (“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an appropriate Incremental Credit Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Incremental Term Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Term Lenders holding a majority of the principal amount of the Term Loans outstanding immediately prior to the effectiveness of such Incremental Term Assumption Agreement, (i) the final maturity date of any [[NYCORP:2679581v6:4454W:02/23/07--03:20 p]] Other Term Loans shall be no earlier than the Term Maturity Date, (ii) the average life to maturity of any Other Term Loans shall be no shorter than the average life to maturity of such Term Loans and (iii) if the initial yield on any Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the Adjusted LIBOR margin on the Other Term Loans and (y) if the Other Term Loans are initially made at a discount or the Incremental Term Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for making such Loans (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 four) 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 Applicable Rate then in effect for Eurodollar Term Loans, then the Applicable Rate then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans.
(c) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Credit Assumption Agreement. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Credit Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase or advisable, in the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount judgment of the Administrative Agent, to reflect the existence and terms of each Incremental Revolving Facility Commitments Commitment evidenced thereby, except as thereby and any increase in the Applicable Rate required by the last sentence of this clause paragraph (b) and as required by clause (c)of this Section. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(d) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (a) and each (b) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation reasonably requested by the Administrative Agent consistent with those delivered on the Closing Date pursuant to Section 4.01.
(e) Upon effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans and Commitments of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Loans and Commitments of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Loans and Commitments of the applicable Class) hereunder. Without limiting the generality of the foregoing, (i) upon the effectiveness of an Incremental Revolving Commitment of any Incremental Revolving Lender, such Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver be deemed to have acquired, on the Administrative Agent an amendment to (i) this Agreementterms set forth in Section 2.05, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of participations in [[NYCORP:2679581v6:4454W:02/23/07--03:20 p]] outstanding Revolving LoansLetters of Credit equal to such Incremental Revolving Lender’s Applicable Revolving Percentage and (ii) upon the effectiveness of an Incremental Tranche A LC Commitment of any Incremental Tranche A LC Lender, if necessary, to evidence the initial Borrowing under the FILO Subfacility, such Incremental Tranche A LC Lender (x) shall deposit in the addition Tranche A Deposit Account an amount in dollars equal to such Incremental Tranche A LC Lender’s Incremental Tranche A LC Commitment (the amount of voting provisions in Section 9.08 that relate solely such deposit actually made being referred to herein as the FILO Subfacility“Incremental Tranche A Deposit” of such Incremental Tranche A LC Lender), (y) shall be bound by the addition agreements and acknowledgements of assignment provisions the Tranche A LC Lenders set forth in Section 9.04 allowing for 2.05(o), 2.05(p) and 2.05(q) (and shall be deemed to have granted a security interest in its Incremental Tranche A Deposit as set forth in Section 2.05(o)) and (z) shall be deemed to have acquired, on the assignment terms set forth in Section 2.05, participations in outstanding Tranche A Letters of Credit equal to such Incremental Tranche A LC Lender’s Applicable Tranche A LC Percentage. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Facility CommitmentsCommitment or any Incremental Tranche A LC Commitment (and the concomitant funding of the Incremental Tranche A Deposit), or FILO Commitmentsthe Applicable Revolving Percentage and the Applicable Tranche A LC Percentage, as the case may be, on a standalone basis, shall automatically be adjusted to reflect such effectiveness (and such funding).
(zf) a prohibition on optional prepayments Each of the FILO parties hereto hereby agrees that the Administrative Agent may take any and all action that it deems necessary or advisable to ensure that all Incremental Term Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Productsthe 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 Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding Eurodollar Term Borrowing 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 the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing then, subject to Section 2.13(c), the interest rate applicable to such Incremental Term Loan for the remainder of such Interest Period shall equal the Adjusted LIBO Rate for a period approximately equal to the remainder of such Interest Period (as determined by the Administrative Agent two Business Days before the date such Incremental Term Loan is made) plus the Applicable Rate.
Appears in 1 contract
Sources: Credit Agreement (Healthsouth Corp)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the The Borrowers may, by written notice to the Administrative Agent from time to time, request additional Revolving Commitments (collectively, “Incremental Revolving Facility Commitments”) from the Lenders (in the sole discretion of such Lenders) or, if such Lenders have declined to issue the full amount of the requested Incremental Commitments pursuant to the provisions set forth in an amount not to exceed the Incremental Amount from this clause (a), one or more Incremental Revolving Lenders (which may include any existing Lender) willing Eligible Assignees who will become Lenders, in an aggregate principal amount of up to provide $30,000,000 provided that at the time of the incurrence of such Incremental Revolving Facility CommitmentsCommitments and immediately after giving effect thereto and to the use of the proceeds thereof, as the case may be, in their own discretionno Default shall have occurred and be continuing or would result therefrom; provided, further, that (i1) each Incremental Revolving such person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent Agent, the L/C Issuers and the Swingline Lender (which approval approvals shall not be unreasonably withheld, conditioned or delayed) unless such Incremental Revolving Lender is a Lender, and (ii2) each during the term of this Agreement, Incremental Revolving Facility Commitment Commitments shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall only be provided on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility two (2) occasions. To request Incremental Commitments, as applicable, and in all respects the Lead Borrower shall become first submit a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable notice to the existing Revolving Facility Commitments that is being increased Administrative Agent (to be promptly distributed by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) the Administrative Agent to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (iLenders) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set setting forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million 2,500,000 and a minimum amount of $25 million or equal to the remaining Incremental Amount10,000,000), and (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (which shall not be less than ten (10) Business Days nor more than sixty (60) calendar days after the “Increased Amount Date”date of such notice, unless otherwise agreed to by the Administrative Agent). Each Lender shall have ten (10) Business Days to notify the Administrative Agent of up to what amount (if any) of Incremental Commitments it would be willing to provide (including any amounts it would be willing to provide above the portion of the Incremental Commitments that is proportional to its Applicable Percentage of the Revolving Commitments) (provided, that any Lender may elect to provide such Incremental Commitments through one or more Affiliates and Approved Funds of such Lender, subject to, if such Affiliates or Approved Funds are not already Lenders hereunder, the approval of the Administrative Agent, the L/C Issuers and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed)) (provided, further, that a failure by a Lender to provide such a notice to the Administrative Agent within such ten (10) Business Day period shall be deemed to mean that such Lender does not agree to provide Incremental Commitments). Promptly (and in any event within one (1) Business Day) after such ten (10) Business Day period (or earlier, in the Administrative Agent’s discretion, if responses from all Lenders have been received by the Administrative Agent), the Administrative Agent shall notify the Lead Borrower of the aggregate amount of Incremental Commitments that the Lenders have agreed to provide (iv) whether such capped at the maximum amount of Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility requested by the Lead Borrower). If there is any shortfall between the amount of Incremental Commitments or Canadian Revolving Facility Commitmentsrequested by the Lead Borrower and the aggregate amount of Incremental Commitments the Lenders agreed to provide, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that the Lead Borrower may (x) all FILO reduce the amount of Incremental Commitments shall be requested on a single Increased Amount Date, by it by notice to the Administrative Agent (subject to the minimum amount and minimum increments set forth above) and/or (y) after allocating additional Incremental Commitments to those Lenders who have offered to provide such additional amounts pursuant to the terms preceding sentence, seek out one or more Eligible Assignees (or one or more existing Lenders) to provide the shortfall amount of such FILO CommitmentsIncremental Commitments and notify the Administrative Agent thereof (provided, including pricingthat the approval of the Administrative Agent, the L/C Issuers and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed) shall be set forth in required with respect to such noticeEligible Assignees that are not existing Lenders) (provided, if applicablefurther, and shall that the Lead Borrower may, by notice to the Administrative Agent, extend the proposed effective date for such Incremental Commitments as may be as agreed by reasonably appropriate to accommodate the relevant Incremental Revolving Lenders, the BorrowersLead Borrower’s search for, and the Administrative Agent’s, L/C Issuers’ and Swingline Lender’s approval of, providers of the Incremental Commitments). To the extent that more than one Lender has agreed to provide Incremental Commitments and the aggregate Incremental Commitments such Lenders have agreed to provide exceeds the amount of Incremental Commitments requested by the Lead Borrower, each such Lender shall provide Incremental Commitments in proportion to its Applicable Percentage relative to the Applicable Percentages of all such Lenders that have agreed to provide Incremental Commitments; provided, that if any Lender has not agreed to provide Incremental Commitments in an amount at least equal to such pro rata share (“underproviding lender”), the other Lenders agreeing to provide Incremental Commitments in an amount in excess of their respective Applicable Percentages (“overproviding lenders”) shall provide the Incremental Commitments that would otherwise be provided by the underproviding lender in proportion to their respective Applicable Percentages relative to the Applicable Percentages of all overproviding lenders.
(b) The Administrative Agent, the Borrowers and each Lender or other Person providing an Incremental Revolving Lender Commitment shall execute and deliver to the Administrative Agent enter into an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment Commitments, in each case on terms and conditions consistent with this Section 2.12. The Administrative Agent shall promptly notify each Lender as to the effectiveness of such each Incremental Revolving LenderAssumption Agreement. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended amended, without requiring the consent of any Person other than the Administrative Agent, the Borrowers and each Lender or other Person providing an Incremental Commitment pursuant to such Incremental Assumption Agreement, to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Lead Borrower’s consent (not to be unreasonably withheldwithheld or delayed) and furnished to the other parties hereto. In addition, the Borrowers and .
(c) The terms of each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver be reasonably satisfactory to the Administrative Agent an amendment to and in all events:
(i) this Agreement, incorporating any Revolving Loans under any Incremental Commitments shall rank pari passu in right of payment and of security with the FILO Subfacility on customary existing Revolving Loans; and
(ii) all material terms as are reasonably acceptable of any Incremental Commitments and Revolving Loans under such Incremental Commitments shall be identical to the Administrative Agent, including (w) reallocations of outstanding existing Revolving Commitments and Revolving Loans.
(d) No Incremental Commitments shall become effective under this Section 2.12 unless, if necessary, to evidence on the initial Borrowing under the FILO Subfacilitydate of such effectiveness, (xi) the addition of voting provisions conditions set forth in Section 9.08 that relate solely to the FILO Subfacility, paragraphs (ya) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (zb) of Section 3.02 shall be satisfied as if it was a prohibition on optional prepayments borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the FILO Loans at any time when Revolving Loans, Lead Borrower; and (ii) an amendment to Section 5.02(bthe Administrative Agent shall have received closing certificates, opinions of counsel and other customary documentation reasonably requested by the Administrative Agent.
(e) Each of the U.S. Collateral Agreement or Section 5.02(b) of parties hereto hereby agrees that the Canadian Collateral AgreementAdministrative Agent may take any and all action as may be reasonably necessary to ensure that, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full establishment of all other Obligations of any Incremental 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 LIBOR Revolving Borrowing to be converted into an ABR Borrowing on the date of each Incremental Commitment, or requiring a prepayment and cash collateralization reborrowing of outstanding Letters of CreditRevolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 2.17 (it being understood that, but prior the Administrative Agent shall consult with the Lead Borrower regarding the foregoing and, to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreementextent practicable, as applicable) (other than Noticed Bank Productswill attempt to pursue options that minimize breakage costs).
Appears in 1 contract
Incremental Commitments. (a) After So long as the Amendment and Restatement Effective DateIncremental Commitment Request Requirements are satisfied at the time of the delivery of the request, the Borrowers may, by written notice to the Administrative Agent Borrower may request at any time and from time to timetime after the Effective Date and prior to the Commitment Termination Date, request that the Lender provide an Incremental Revolving Facility Commitments Commitment and, subject to the applicable terms and conditions contained in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitmentsthis Agreement, as the case may bemake Advances pursuant thereto; it being understood and agreed, in their own discretion; providedhowever, that (i) each Incremental Revolving the Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless obligated to provide an Incremental Commitment as a result of any such request by the Borrower, and until such time, if any, as the Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered an Incremental Commitment Agreement in respect thereof as provided in Section 2.14(b), the Lender shall not be obligated to fund any Advances in excess of the Commitment as in effect prior to giving effect to such Incremental Revolving Lender is a LenderCommitment provided pursuant to Section 2.14(b) below, and (ii) each provision of an Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Gridgiven date pursuant to Section 2.14(b) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which below shall be in minimum increments of $5 million and a minimum amount of at least $25 million or equal to the remaining Incremental Amount)25,000,000 and in integral multiples of $25,000,000 in excess thereof, (iiiv) the aggregate amount of all Incremental Revolving Facility CommitmentsCommitments provided pursuant to Section 2.14(b) below, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments$250,000,000, and (v) whether all Advances made pursuant to Incremental Commitments (and all interest, fees and other amounts payable thereon) shall be obligations under this Agreement and the other applicable Loan Documents.
(b) At the time of the provision of an Incremental Commitment pursuant to this Section 2.14, the Borrower and the Lender shall execute and deliver an Incremental Commitment Agreement, with the effectiveness of such Incremental Revolving Facility Commitments will constitute FILO Commitments Commitment to occur on the date (it being understood that the "Incremental Commitment Date") set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the 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 Lender, (x) all FILO Commitments Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.14(b) shall be requested on a single Increased Amount Datehave been satisfied, and (yz) the terms of such FILO Commitments, including pricing, shall all other conditions precedent that may be set forth in such notice, if applicableIncremental Commitment Agreement shall have been satisfied. The Lender's Commitment under, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreementfor all purposes of, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, increased by the amount of such Incremental Commitment on the Incremental Revolving Facility Commitments evidenced thereby, except as required Commitment Date for such Incremental Commitment."
(f) Exhibit E (Form of Mortgage) to the Credit Agreement is hereby replaced by the last sentence form of Exhibit E attached hereto.
(g) The Credit Agreement is amended by adding Exhibit L attached hereto as an exhibit thereto.
(h) Each reference in the Credit Agreement to "this clause (b) Agreement", "hereunder", "hereof", "herein" or words of like import, and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished each reference to the "Credit Agreement" in any of the other parties hereto. In additionLoan Documents, the Borrowers shall mean and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver refer to the Administrative Agent an amendment to Credit Agreement as amended hereby.
(i) this Agreement, incorporating Each reference in any of the FILO Subfacility on customary terms as are reasonably acceptable Loan Documents to "Note" shall mean and refer to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence Note executed and delivered by the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment Borrower pursuant to Section 5.02(b3.01(a)(viii) of the U.S. Collateral Credit Agreement or and any other Note executed and delivered by the Borrower hereafter pursuant to Section 5.02(b) 2.14 of the Canadian Collateral Credit Agreement as amended by this Amendatory Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers may, The Borrower may by written notice (which may be included in the Additional Credit Extension Amendment itself) to the Administrative Agent from time elect to time, request Incremental seek (w) commitments (“Additional Revolving Commitments”) to increase the Revolving Facility Commitments in an of any Class, (x) commitments (“Additional Term Loan Commitments”) to increase the aggregate principal amount of 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 (“Term B Loan Commitments”) to establish a new Class of Term B Loans; provided that:
(i) the aggregate principal amount of all Incremental Commitments after the Closing Date, together with the aggregate principal amount of Incremental Equivalent Debt incurred after the Closing Date and outstanding at such time, shall not to exceed the Incremental Amount and calculation of the Incremental Amount shall be made on Pro Forma Basis and evidenced by a certificate from one a Financial Officer of Parent or more Incremental Revolving Lenders Borrower;
(which 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 (or such other amount approved by the Administrative Agent) in excess thereof; provided that such amount may include any existing Lender) willing to provide be less than $25,000,000 if such Incremental Revolving Facility Commitments, as amount represents all remaining availability under the case may be, limit set forth in their own discretion; provided, that the preceding clause (i) each Incremental Revolving or is otherwise approved by the Administrative Agent;
(iii) no existing Lender shall be subject required to provide any Incremental Commitments unless it otherwise agrees and no existing Lender (or its Affiliates or Approved Funds) will have any right of first offer or right of first refusal with respect thereto;
(iv) the approval terms of each Incremental Term Facility will be as agreed between the Administrative Agent (which approval shall not be unreasonably withheld) unless applicable Borrowers and the Persons providing such Incremental Term Facility; provided that:
(A) any Additional Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment Commitments shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on have the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased (except that the Lenders providing Additional Revolving Commitments may receive customary upfront fees in connection therewith);
(B) the final maturity date of any Other Term A Loan shall be no earlier than the Term A Facility Maturity Date, and the final maturity date of any Term B Loan shall be no earlier than the later of (x) one year following the Term A Facility Maturity Date and (y) the Incremental Term B Loan Facility Maturity Date, except for Permitted Short Term Debt;
(C) the Weighted Average Life to Maturity of any Other Term A Loan shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term A Loans, and the Weighted Average Life to Maturity of any Term B Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term A Loans or the existing Incremental Term B Loans, except for Permitted Short Term Debt;
(D) the Other Term A Loans shall share on a pro rata basis (or if agreed by the Incremental Term Lenders providing such Other Term A Loans, on a less than pro rata basis) in any mandatory prepayment or voluntary prepayment of the Term A Loans hereunder, and the Term B Loans shall share on a pro rata basis (or if agreed by the Incremental Term Lenders providing such Term B Loans, on a less than pro rata basis) in any mandatory prepayment or voluntary prepayment of the Incremental Term B Loans or any other Term Loans hereunder;
(E) except as to amortization, sharing of prepayments and final maturity date (which shall, subject to clauses (B), (C) and (D) of this proviso, be determined by the Borrower and the then committing Incremental Term Lenders in their sole discretion), the Other Term A Loans shall have (x) the same terms as the then outstanding 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 as determined in the reasonable determination of the Administrative Agent and the Borrower, 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;
(F) except as to pricing, amortization, sharing of prepayments and final maturity date (which shall, subject to clauses (B), (C) and (D) of this proviso, be determined by the Borrower and the then committing Incremental Term Lenders in their sole discretion), (a) the covenants and events of default applicable to Term B Loans shall not be materially more favorable (when taken as a whole) to the Incremental Term Lenders providing the Term B Loans than those applicable to the Term A Facility or the Incremental Term B Loan Facility (except to the extent such terms apply only after the then Latest Maturity Date or such covenants or other terms apply equally for the benefit of the other Lenders holding Term A Loans and Incremental Term B Loans) as determined in the reasonable determination of the Administrative Agent and the Borrower, (b) at the sole discretion of the Borrower and the Incremental Term Lenders providing the Term B Loans, the Term B Loans may benefit from a prepayment premium not applicable to the other outstanding Facilities and (c) the operational and agency provisions applicable to such Term B Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower; and
(1) the security interest and guaranties benefiting the Incremental Term Loans will rank pari passu in right of payment and security with the existing Facilities, (2) no Person shall guarantee the obligations with respect to any Incremental Term Loans unless such Person is a Loan Party and (3) no Incremental Term Loans will be secured by any property that does not constitute Collateral under the existing Facilities.; and
(b) The availability of any Incremental Commitments or Incremental Term Loans under this Agreement will be subject solely to the following conditions, subject, for the avoidance of doubt, to Section 1.09, measured (at the election of Parent or Borrower) on the date of the initial borrowing under (or receipt of commitments with respect to) such Facility:
(i) no Default or Event of Default shall have occurred and be continuing; provided that the condition set forth in this clause (i) may be waived or not required (other than with respect to Specified Events of Default) by the Persons providing such Facilities if the proceeds of the initial Borrowings thereunder will be used to finance, in whole or in part, a Permitted Business Acquisition or other Investment permitted hereunder; and
(ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects as of such date, 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 representations and warranties that are qualified by materiality shall be true and correct in all respects); provided that the condition set forth in this clause (ii) may be limited to customary “SunGard” style conditionality by the Persons providing such Facilities if the proceeds of the initial Borrowings thereunder will be used to finance, in whole or in part, a Permitted Business Acquisition or other Investment permitted hereunder.
(c) Each such notice shall specify (x) the date (each, an “Incremental Commitments Effective Date”) on which the Borrower proposes that the Incremental Commitments shall automatically be increased effective, which shall be a Business Day and (but y) the identity of the Persons (each of which shall be an Eligible Person and the consent of the Persons specified in no event decreasedSection 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.
(d) Upon the incurrence of Additional Revolving Commitment pursuant to this Section 2.22, 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 cause any Incremental keep the outstanding Revolving Facility Loans pro rata across all Classes of Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments arising from any nonratable increase in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date . If there is a new borrowing of Revolving Facility Loans on which such Incremental Commitments Effective Date, the Revolving Facility Lenders after giving effect to such Additional Revolving Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether shall make such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth Loans in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agentaccordance with Section 2.01(c).
(be) The Borrowers Incremental Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Incremental Commitments (and each Incremental Revolving the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender shall execute or other Person), and deliver the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Borrower, to effect the provisions of this Section 2.22.
(f) This Section 2.22 shall supersede any provisions in Section 2.19 or Section 9.08 to the contrary. The Administrative Agent shall reasonably specify to evidence and the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of Lenders hereby further agree that the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreementminimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall be deemed amended not apply to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment transactions effected pursuant to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)2.22.
Appears in 1 contract
Sources: Credit Agreement (EVERTEC, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers 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 Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition 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 Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) 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 approval approvals shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionLender. 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 million 5,000,000 and a minimum amount of $25 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective (the “Increased Amount Date”)effective, (iviii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be (x) commitments to make additional Revolving Facility Commitments Loans on the same terms as the Initial Revolving Loans or Canadian (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Facility Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, and (v) whether such Incremental Revolving Facility Term Loan Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments shall be requested commitments to make term loans on a single Increased Amount Date, and the same terms as the Term B Loans or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such notice, if applicable, and shall be as agreed by mandatory prepayments and/or other terms different from the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentTerm B Loans (“Other Term Loans”).
(ba) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(ix) (A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrower and furnished to the other parties hereto. In addition.
(b) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the Borrowers conditions set forth in clause (d) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a 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, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under the Restatement Agreement and such additional customary documents and filings (including amendments or supplements to the Mortgages and other Collateral Documents, as applicable, and title date-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents or hereunder) 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 Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(c) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans 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 effect the foregoing.
(d) 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 this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) 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).
(e) The Borrower and each Incremental Revolving Extending Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment 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) this Agreementexcept as to interest rates, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, fees and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
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Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, and (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Loan Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative 89 Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and each Incremental Revolving Lender accepting a FILO Commitment (c) of Section 4.01 shall execute be satisfied, and deliver to the Administrative Agent an amendment shall have received a certificate to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on effect dated such date and executed by a standalone basis, and (z) a prohibition on optional prepayments Responsible Officer of the FILO Loans at any time when Revolving LoansCompany, and (ii) an amendment the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.02(b4.02 and such additional 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 Revolving Loans in respect of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed Incremental Revolving Facility Commitments are secured by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of ratably with all other Obligations Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Loans in respect of Bank Products (as defined Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving 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 U.S. Collateral Agreement or Administrative Agent to effect the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)foregoing.
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Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers 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 Commitments, as applicable, in an amount not to exceed in the aggregate the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Facility Lender and Incremental Term Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless unless, in the case of any Incremental Term Lender, such Incremental Revolving Term Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments an Affiliate of a Lender or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionan Approved Fund. 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 million and a minimum amount of $25 million or equal to the remaining Incremental Amount)requested, (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”)) and (iii) in the case of Incremental Term Loan Commitments, (iv) whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility are to be Term B Loan Commitments to make Term B Loans or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth in such noticeYield, if applicable, and shall be as agreed by maturity date and/or amortization terms different from the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentTerm B Loans (“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, provided that the Yield in respect of any Other Term Loans secured on a pari passu basis with the Term B Loans made on or prior to the date that is eighteen (18) months after the Closing Date shall not exceed 0.50% or more above the Yield in respect of the Term B Loans or, if it does so exceed 0.50% or more of such Yield in respect of the Term B Loans, the Applicable Margin in respect of the Term B Loans shall be increased so that the Yield in respect of such Other Term Loans is not greater than 0.50% above the Yield in respect of the Term B Loans, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans and (iv) from and after the effectiveness of the each Incremental Assumption Agreement, the associated Incremental Revolving Facility Commitments shall thereafter be Revolving Facility Commitments. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided that in the event that the Incremental Term Loan Commitments are used to finance a Permitted Business Acquisition, the condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be limited to customary “specified representations” and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, and the condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall be made by the Borrower at the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the 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) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B 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 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 Lenders to effect the foregoing.
(e) Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (l) of this Section 2.20)) or any other Loan Document, pursuant to one or more offers made from time to time by the Borrower to all Lenders of a particular Facility on a pro rata basis (“Extension Offers”), the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Term Loans or the Synthetic L/C Commitments or Revolving Facility Commitments as applicable to each such Lender and to otherwise modify the terms of such Lender’s Term Loans, the Synthetic L/C Commitments (or Credit-Linked Deposit) or Revolving Facility Commitment pursuant to the terms of the relevant Extension Offer (including increasing the interest rate or fees and/or modifying the amortization schedule in respect thereof). Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under the Credit Agreement by (i) 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”), (ii) implementing 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 (iii) with respect to any extension of a Synthetic L/C Maturity Date (such extended Credit-Linked Deposit, an “Extended Synthetic L/C Commitment”), deeming the Credit Agreement amended such that references to Synthetic L/C Commitments (and any related definitions and terms) shall be deemed to include the Extended Synthetic L/C Commitments where necessary to carry out the intent of this Section. The Borrower shall not be required to make Extension Offers on a pro rata basis across the Term Loans, Revolving Facility Commitments and Credit-Linked Deposits, and the Borrower shall be permitted to elect whether any such Election Offer shall apply to the Term Loans, Revolving Facility Commitments or Credit-Linked Deposits (or any combination thereof).
(f) The Borrower and each Incremental Revolving Extending Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms Incremental Assumption Agreement and such other documentation as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, Agent shall reasonably specify to evidence the initial Borrowing under the FILO SubfacilityExtended Term Loans, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Extended Revolving Facility Commitments and/or Extended Synthetic L/C Commitments, or FILO as applicable, of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans, Extended Revolving Facility Commitments and/or Extended Synthetic L/C Commitments, as the case may be; provided that (i) except as to interest rates, on a standalone basisfees, amortization, final maturity date and participation in prepayments (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loanswhich shall, and subject to clauses (ii) an amendment to Section 5.02(band (iii) of this proviso, be determined by the U.S. Collateral Agreement Borrower and set forth in the Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term B Loans or Section 5.02(b(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 later than the Term B Facility Maturity Date, (iii) the weighted average life to maturity of any Extended Term Loans shall be longer than the remaining weighted average life to maturity of the Canadian Collateral Term B Loans, (iv) except as to interest rates, fees and final maturity, any Extended Revolving Loan Commitment (other than as contemplated by Section 2.20(h)) shall be a Revolving Loan Commitment with the same terms as the Revolving Facility Loans, (v) except as to interest rates, fees and final maturity, any Extended Synthetic L/C Commitment shall be a Credit-Linked Deposit with the same terms as the Credit-Linked Deposits and (vi) other than as set forth in Section 2.11(g), any Extended Term Loans, Extended Revolving Facility Commitments and Extended Synthetic L/C Commitments may participate on a pro rata basis or a less than pro rata basis (but not on a greater than 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, Extended Revolving Facility Commitments and Extended Synthetic L/C Commitments, as applicable, executed evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Collateral Administrative Agent with the Borrower’s consent (as defined thereinnot to be unreasonably withheld) in order to provide for the payment of Obligations due and furnished to the FILO other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan (or applicable portion thereof) will be automatically designated an Extended Term Loan, such Extending Lender’s Revolving Facility Commitment (or applicable portion thereof) will, except as contemplated by Section 2.20(h), be automatically designated an Extended Revolving Facility Commitment, such Extending Lender’s Credit-Linked Deposit (or applicable portion thereof) will be automatically designated an Extended Synthetic L/C Commitment, in each case as applicable. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan (or portion thereof), such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan, (ii) if such Extending Lender is extending a Revolving Facility Commitment (or portion thereof), except as contemplated by Section 2.20(h), such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment and (iii) if such Extending Lender is extending a Credit-Linked Deposit (or portion thereof), such Extending Lender will be deemed to have a Credit-Linked Deposit having the terms of such Extended Synthetic L/C Commitment.
(h) Notwithstanding anything to the contrary set forth in this Section 2.20, pursuant to an Extension Offer the Borrower is hereby permitted to consummate from time to time transactions with individual Revolving Facility Lenders that accept the terms contained in such Extension Offers to extend the Revolving Facility Maturity Date as applicable to each such Lender and to otherwise modify the terms of such Lender’s Revolving Facility Commitment pursuant to the terms of the relevant Extension Offer such that all or a customary fashion following the payment in full of all other Obligations portion of the Revolving Lenders Facility Commitment that such Revolving Facility Lender chooses to extend shall be fully drawn upon the effectiveness of such Extension, and cash collateralization such portion shall be automatically converted to and designated an Extended Term Loan with the terms set forth in the applicable Incremental Assumption Agreement, and such Revolving Facility Lender shall be automatically designated as an Extending Lender with respect to such Extended Term Loans. For purposes of outstanding the Credit Agreement and the other Loan Documents, such Revolving Facility Lender will be deemed as to such portion to have an Incremental Term Loan that is an Extended Term Loan with the terms as set forth in the applicable Incremental Assumption Agreement, and such Incremental Term Loan shall be treated as a Term Loan for purposes of all prepayments. For the avoidance of doubt, the terms of such Extended Term Loans shall have the same terms as any Tranche of other Extended Term Loans then existing (after giving effect to the prepayment thereof on or promptly following the applicable date of extension thereof). For the avoidance of doubt, any portion of the Revolving Facility Commitment of any Revolving Facility Lender that is designated as an Extended Term Loan pursuant to this Section 2.20(h) shall cease to be part of a Revolving Facility Commitment and shall not be part of an Extended Revolving Facility Commitment, and the Administrative Agent shall reallocate any participations in the Revolving Letters of CreditCredit and require prepayments and reborrowings of any outstanding Revolving Facility Loans so that after giving effect thereto, but prior such participations and Revolving Facility Loans shall be ratable as contemplated hereby.
(i) Notwithstanding anything to the contrary set forth in this Agreement or any payments in respect other Loan Document (including this Section 2.20), (i) the aggregate amount of Bank Products (as defined Extended Term Loans, Extended Revolving Facility Commitments and Extended Synthetic L/C Commitments will not be included in the U.S. Collateral Agreement calculation of the Incremental Amount, (ii) no Extended Term Loan, Extended Revolving Facility Commitment or Extended Synthetic L/C Commitment is required to be in any minimum amount or any minimum increment, (iii) except as set forth in the Canadian Collateral Agreementapplicable Extension Offer, as applicable) (other than Noticed Bank Products).any Extending Lender may extend all or any portion of its Term Loans, Revolving Facility Commitm
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Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers mayThe Company may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request the establishment of Incremental Revolving Facility Commitments in an Commitments, provided that the aggregate amount not to exceed of all the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide Commitments established hereunder shall not exceed US$50,000,000 during the term of this Agreement. Each such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that notice shall specify (i) each the date on which the Company proposes that the Incremental Revolving Lender Commitments shall be subject effective, which shall be a date not less than 10 Business Days (or such shorter period as may be acceptable to the approval of Administrative Agent) after the date on which such notice is delivered to the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a LenderAgent, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood agreed that (x) all FILO Commitments shall be requested on a single Increased Amount Dateany 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 terms of such FILO Commitments, including pricing, shall be set forth in such noticeCompany proposes to become an Incremental Lender, if applicablesuch Person is not then a Lender, must be an Eligible Assignee and shall must be as agreed approved by the relevant Incremental Revolving Lenders, the Borrowers, Administrative Agent and the Administrative Agenteach Issuing Bank (such approval not to be unreasonably withheld or delayed)).
(b) The Borrowers terms and conditions of any Incremental Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and the Loans and other extensions of credit made thereunder; provided that, if the Company determines to increase the interest rate or fees payable in respect of Incremental Commitments or Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the other Commitments or Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Commitments or Loans and other extensions of credit made thereunder, as the case may be.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrowers, each Incremental Revolving Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall execute become effective unless (i) no Default shall have occurred and deliver be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the date of the 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, in each case on and as of such date, 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) the Borrowers shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section and (iv) the Borrowers shall have delivered to the Administrative Agent an Incremental Assumption Agreement such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and such other documentation 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 (but with the consent of the Company), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender, if not already a Lender, shall reasonably specify be deemed to evidence 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, (ii) such Incremental Revolving Facility Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Revolving Lender. Each 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 parties hereto hereby agrees that term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Assumption AgreementCommitment, this Agreement the Revolving Exposures and the Applicable Percentages 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 outstanding principal amount of the Revolving Loans made to each Borrower (the “Existing Revolving Borrowings” of such Borrower) immediately prior to the effectiveness of such Incremental Commitments shall be deemed amended to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the extent (but only effectiveness of such Incremental Commitments shall pay to the extentAdministrative Agent in same day funds an amount equal to the difference between (A) necessary the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to increase the U.S. Revolving Facility or effectiveness of such Incremental Commitments) multiplied by (2) the Canadian Revolving Facility, as the case may be, by 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 Facility Borrowings, (iii) each Incremental Lender that shall not have had a Commitment prior to the effectiveness of such Incremental Commitments evidenced therebyshall pay to Administrative Agent in 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, except as required (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds that is equal to the difference 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, each Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings” of such Borrower) in an aggregate amount equal to the aggregate amount of such Borrower’s Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered by such Borrower to the Administrative Agent in accordance with Section 2.03 (and such Borrower shall deliver such 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 of such Borrower. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the applicable Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of such Incremental Commitments occurs other than on the last sentence day of this clause the Interest Period relating thereto.
(bf) and as required by clause (c). Any such deemed amendment may be memorialized in writing The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent with of any notice from the Borrowers’ consent (not Company referred to in Section 2.20(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the payments required to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment made pursuant to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products2.20(e).
Appears in 1 contract
Sources: Credit Agreement (GoPro, Inc.)
Incremental Commitments. (a) After Prior to the Amendment and Restatement Effective Commitment Termination Date, the Borrowers Borrower may, by written notice to the Administrative Agent from time to timeAgent, request an increase to the existing Commitments (any such increase, any “Incremental Revolving Facility Commitment”); provided, this Section 2.14 shall not apply to any increase in the Commitments pursuant to Section 2.01(b).
(b) Any such requested increase shall be a pro rata increase in the CP Advance Rate Commitments and the LIBO Rate Commitments.
(c) No increase to the existing Commitments shall occur, and no Person may provide an amount not Incremental Commitment, in each case, without the prior written consent of the Administrative Agent, which consent shall be in the sole discretion of the Administrative Agent and the Lenders (each approved Person, if any, an “Incremental Lender”).
(d) No Lender or any other Person shall have any obligation to exceed provide any or all of the Incremental Amount from Commitments until such time such Person becomes an Incremental Lender, and any Lender may elect or decline, in its sole discretion, to provide an Incremental Commitment.
(e) Each Incremental Commitment shall become effective as of the date agreed to among Borrower, the Administrative Agent and the applicable Incremental Lenders (the “Incremental Increase Date”), so long as (i) no Termination Event shall exist on such Incremental Increase Date before or after giving effect to such Incremental Commitments; (ii) the Incremental Commitments shall be effected pursuant to one or more joinder agreements, in form and substance satisfactory to the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 2.11(c); and (iii) Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(f) On any Incremental Revolving Increase Date, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender having an existing Commitment of a Class of Advances shall assign to each of the Incremental Lenders (which may include any existing Lender) willing to provide having a Commitment of such Class of Advances, and each such Incremental Revolving Facility Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Class of Advances outstanding on the Incremental Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Class of Advances will be held by such Lenders having existing Commitments of such Class of Advances and Incremental Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Commitments to the Commitments; (ii) each Incremental Commitment shall be deemed for all purposes a Commitment of a Class of Advances and each Advance made thereunder (an “Incremental Advance”) shall be deemed, for all purposes, an Advance of such Class and (iii) each Incremental Lender shall become a Lender with respect to the Incremental Commitment and all matters relating thereto.
(g) The Administrative Agent shall notify the Lenders, promptly upon determination of any Incremental Increase Date, of (i) the Incremental Commitments and the Incremental Lenders, and (ii) in the case of each notice to any Lender having CP Rate Exposure or LIBO Rate Exposure, as the case may be, the respective interests in their own discretion; providedsuch Lender’s Advances, that in each case subject to the assignments contemplated by this Section 2.14.
(h) The terms and provisions of the Incremental Advances shall be identical to the Advances.
(i) each Each agreement pursuant to which any Incremental Revolving Lender shall be Commitments and Incremental Advances are effected may, without the consent (subject to Section 9.10) of any the approval Lenders but with the consent of the Administrative Agent (which approval shall not be unreasonably withheld) unless Borrower, effect such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) amendments to this Agreement and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically other Transaction Documents as may be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided furtheror appropriate, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form opinion of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations to effect the provision of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in this Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)2.14.
Appears in 1 contract
Sources: Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments Commitments, in order to fund a Designated Acquisition, in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender; provided that no such existing Lender shall be obligated to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Commitments in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount)requested, (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iviii) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility are to be Term B Loan Commitments or Canadian Revolving Facility Commitments, and commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that with respect to Incremental Term Loans, (A) the Other Term Loans shall rank pari passu or junior in right of payment and of security with (including being guaranteed by the same Guarantors and being secured on a pari passu or junior basis by the same Collateral as) the Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Borrower and the Administrative Agent; provided that with respect to Incremental Term Loans, the interest rates and amortization schedule shall (subject to the following criteria) be determined by the Borrower and the Incremental Term Lenders providing such Incremental Term Loans and, if the initial yield (as determined by the Administrative Agent as set forth below) on the Other Term Loans exceeds by more than 50 basis points (the amount of such excess above 50 basis points being herein referred to as the “Yield Differential”) the interest rate margins then in effect for outstanding Term Loans (which shall 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 Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (C) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (c)provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the 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. In additionThis Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (A) above, the Borrowers and each initial yield on any Incremental Revolving Lender accepting a FILO Term Loan Commitment shall execute and deliver to be determined by the Administrative Agent an amendment to be equal to the sum of (x) the interest rate margin above Adjusted Term SOFR for loans under the Incremental Term Loan Commitment that bear interest based on Adjusted Term SOFR (which shall be increased by the amount that any interest rate “floor” applicable to 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 (y) if the Incremental Term Loan Commitment is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) this on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and such additional customary documents and filings (including amendments to the Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Loans and Incremental Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Lenders in the applicable Incremental Assumption Agreement, incorporating junior to) the FILO Subfacility on customary terms as are reasonably acceptable existing Term B Loans, (iii) no Default or Event of Default shall have occurred and be Continuing or would result therefrom and (iv) there shall have been paid to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments account of the FILO Loans at Administrative Agent and the Lenders (including any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) Person becoming a Lender as part of such Incremental Assumption Agreement on the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreementrelated Increased Amount Date), as applicable, executed all fees and expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Increased Amount Date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans on a pro-rata basis. Section 3.05 shall not apply to any conversion of Term SOFR Loans to Base Rate Loans reasonably required by the Collateral Administrative Agent to effect the foregoing. On each Increased Amount Date, each Lender which is providing an Incremental Commitment (as defined thereini) in order to provide shall become a “Lender” for all purposes of this Agreement and the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of CreditLoan Documents, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreementii) shall have, as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) (shall make an Incremental Term Loan to the Borrower in a principal amount equal to such Incremental Commitment, and such Incremental Loan or Incremental Commitment shall be a “Loan” or “Commitment” for all purposes of this Agreement and the other than Noticed Bank Products)Loan Documents.
Appears in 1 contract
Sources: Exchange First Lien Loan Credit Agreement (Altisource Portfolio Solutions S.A.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers 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 Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) 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 approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either Lender or a lender in respect of the U.S. Existing Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionLoans. 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 million 5,000,000 and a minimum amount of $25 million 10,000,000, or equal to the remaining Incremental Amount or, in each case, (x) such lesser amount approved by the Administrative Agent or (y) in the case of Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments established pursuant to clause (ii) of or (iv) of the definition of “Incremental Amount”, any amount thereof), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”)effective, (iviii) in the case of Incremental Revolving Facility Commitments, that such Incremental Revolving Facility Commitments are to be commitments to make Revolving Facility Loans (including whether such Incremental Revolving Facility Commitments will shall constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, Super-Priority Obligations) and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments shall be requested commitments to make additional Revolving Facility Loans on a single Increased Amount Date, and the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the terms Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of such FILO Incremental Term Loan Commitments, including whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (including whether such Incremental Term Loans shall be set forth constitute Super-Priority Obligations) (“Other Term Loans”); provided that any Incremental Term Loan Commitments that rank pari passu in such notice, if applicable, right of security with the Term B Loans and are incurred pursuant to clause (ii) of the definition of “Incremental Amount” shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)consist of additional Term B Loans.
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the parties hereto hereby agrees that upon the effectiveness of any applicable Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Term Loans and/or Incremental Revolving Facility Commitments evidenced therebyCommitments; provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided, that (1) if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below and (2) if such Incremental Term Loans rank pari passu in right of security with the Term B Loans, such Incremental Term Loans shall, as designated by the Borrower, either have priority under the Priority Waterfall or not have priority under the Priority Waterfall, (iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as required by the last sentence of this clause to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished which shall, subject to the other parties hereto. In additionclauses of this proviso, be determined by the Borrowers Borrower and each the Incremental Revolving Lender accepting a FILO Commitment Term Lenders in their sole discretion), shall execute and deliver to the Administrative Agent an amendment to have (ix) this Agreement, incorporating the FILO Subfacility on customary substantially similar terms as are the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably acceptable satisfactory to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).,
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Loan Amount from one or more Incremental Revolving Lenders (Lenders, which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, provided that (i) each Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in the case of any increase in Revolving Credit Commitments, the Issuing Bank and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments withheld or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (iidelayed); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which which, unless otherwise agreed to by the Administrative Agent, shall be in minimum increments integral multiples of $5 million 1,000,000 and a minimum amount of $25 million 5,000,000 or in an amount equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (which shall not be less than five Business Days after the “Increased Amount Date”), date of such notice) and (iviii) whether such Incremental Commitments are to be Revolving Facility Commitments will constitute U.S. Revolving Facility Credit Commitments or Canadian Revolving Facility Incremental Term Commitments. For the avoidance of doubt, and (v) whether such no Lender shall have any obligation to assume an Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)Commitment.
(b) The Borrowers Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Lender. Each such agreement shall specify the terms of the Incremental Commitments to be made thereunder; provided, however, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Maturity Date and (ii) if the initial yield on any Incremental Term Loans (as determined by the Administrative Agent to be equal to the sum of (A) the margin over the Adjusted LIBO Rate (including as margin the effect of any “LIBOR floor”) applicable to the Incremental Term Loans and (B) if the Incremental 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 Incremental Term Loans) from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental 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 Incremental Term Loans and (B) four) exceeds (the amount of such excess being referred to herein as the “Yield Differential”) the Applicable Percentage (plus the effect of the “LIBOR floor” contained in clause (a) of the definition of the term “Adjusted LIBO Rate”) for Eurodollar Loans hereunder, then the Applicable Percentages for the Loans hereunder shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans. The other economic terms of any Incremental Term Loans (including the scheduled amortization and the mandatory and optional prepayment provisions thereof) shall be as agreed to by the Borrower and the Incremental Lenders, subject to the prior written approval of the Administrative Agent, and shall be set forth in the Incremental Assumption Agreement. Without the prior written consent of the Required Lenders, any Incremental Commitments consisting of Revolving LenderCredit Commitments shall be identical in all respects to the then-existing Revolving Credit Commitments; provided, however, that (x) the Applicable Percentages, “LIBOR floor” and Commitment Fees with respect to all Revolving Credit Commitments may be increased concurrently with the effectiveness of any Incremental Commitment and (y) if the Incremental Lenders assuming such Revolving Credit Commitment receive an “upfront” fee (as opposed to an “arrangement” or similar fee paid solely to the arranger or arrangers of such Incremental Commitment) from the Borrower or any Subsidiary for doing so, then the Borrower or such Subsidiary shall pay the same “upfront” or similar fee (in each case, as a percentage of the applicable Revolving Credit Commitments) to the then-existing Revolving Credit Lenders in respect of their then-existing Revolving Credit Commitments concurrently with the effectiveness of such Incremental Commitment. 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 that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Commitments Commitment evidenced therebythereby and any increase to the Applicable Percentages, except as “LIBOR floor” or Commitment Fee required by the last sentence foregoing provisions of this clause (b) and as required by clause (cSection 2.23(b). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheldwithheld or delayed) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.23 unless (i) on or before the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and each Incremental Revolving Lender accepting a FILO Commitment (d) of Section 4.01 shall execute be satisfied and deliver to the Administrative Agent an amendment shall have received a certificate to (i) this Agreement, incorporating the FILO Subfacility on customary terms that effect dated as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on such date and executed by a standalone basis, and (z) a prohibition on optional prepayments Financial Officer of the FILO Loans at any time when Revolving LoansBorrower, and (ii) an amendment to Section 5.02(b) the Administrative Agent shall have received (with sufficient copies for each of the U.S. Collateral Agreement or Incremental Lenders) legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date under Section 5.02(b4.02.
(d) Each of the Canadian Collateral Agreement, parties hereto hereby agrees that the Administrative Agent may take any and all action as applicable, executed by the Collateral Agent (as defined therein) in order may be reasonably necessary to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of ensure that all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Loans in respect of Bank Products (as defined Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.15 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the U.S. Collateral Agreement or Administrative Agent to effect the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)foregoing.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Company may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Advances in their own sole discretion; provided, that (i) each Incremental Revolving Lender (which is not an existing Lender) shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million9.07. Such notice shall set forth (iA) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments multiples of $5 million 25,000,000) and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iiiB) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such . The Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments Advances shall be requested on a single Increased Amount Date, and (y) in the terms form of such FILO Commitments, including pricing, shall be set forth in such notice, if applicableterm loans, and shall be made pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement and, as agreed appropriate, the other Loan Documents, executed by the relevant Incremental Revolving LendersCompany, the Borrowers, Agent and the Administrative Agent)each applicable Incremental Lender. No Lender shall be obligated to increase its Commitments pursuant to this Section 2.20 unless it so agrees.
(b) The Borrowers Company and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an agreement in form and substance reasonably satisfactory to the Agent (each, an “Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify Agreement”) to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to specify the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount terms of the Incremental Revolving Facility Commitments evidenced therebyAdvances to be made thereunder, except as required and the Incremental Advances thereunder shall be made on terms and conditions substantially identical to the then outstanding Advances (including pricing, covenants, defaults and maturity date).
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness (unless otherwise agreed among the Incremental Lenders and the Company and consented to by the last sentence of this clause Agent (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheldwithheld or delayed)) (A) the representations and furnished warranties set forth in Article IV are correct in all material respects (except those representations and warranties qualified by materiality, which shall be true and correct) on and as of such date, as though made on and as of such date, except to the other parties hereto. In additionextent that any such representation or warranty expressly relates only to an earlier date, in which case it was correct in all material respects (except those representations and warranties qualified by materiality, which shall be true and correct) as of such earlier date and the Borrowers Agent (acting at the direction of the applicable Incremental Lenders) shall have received a certificate to that effect dated such date and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to executed by the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, Company and (zB) a prohibition on optional prepayments no Event of the FILO Loans at any time when Revolving LoansDefault or Potential Event of Default shall have occurred and be continuing or would result from such Incremental Commitment, and (ii) an amendment to Section 5.02(bthe Agent shall have received such legal opinions, board resolutions and other closing certificates and documentation (including opinions of counsel) as the Agent (acting at the direction of the U.S. Collateral Agreement or Section 5.02(bapplicable Incremental Lenders) shall reasonably request and (iii) the Incremental Commitment of each Incremental Lender that was not, prior to the applicable Increased Amount Date, a Lender hereunder shall not be less than $5,000,000.
(d) In accordance with the terms of the Canadian Collateral Agreementpenultimate paragraph of Section 9.01, any Incremental Amendment may, without the consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as applicablemay be necessary or appropriate, executed by in the Collateral reasonable opinion of the Agent and the Company, to implement the provisions of this Section, a copy of which shall be made available to each Lender.
(e) For the avoidance of doubt, Incremental Advances made in reliance on this Section 2.20 are intended to be fully fungible with the Initial Advances made on the Effective Date. The parties to the applicable Incremental Amendment shall structure the Incremental Advances to be made thereunder so that, after giving effect to the making of such Incremental Advances, the scheduled amortization payments, the Types and Interest Periods comprising such Incremental Advances are ratably the same as defined therein) in order to provide those for the payment of Obligations due Advances outstanding immediately prior to the FILO Lenders in a customary fashion following the payment in full making of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)such Incremental Advances.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Computer Sciences Corp)
Incremental Commitments. (a) After the Amendment and Restatement Effective DateSo long as no Default or Event of Default then exists or would result therefrom, the Borrowers mayBorrower shall have the right to request on one or more occasions that one or more Lenders and/or one or more other Eligible Assignees provide (A) Incremental Term Loan Commitments under a given Tranche of Incremental Term Loans as designated in the Incremental Commitment Agreement in accordance with the provisions of this Agreement and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Incremental Term Loans, pursuant thereto or (B) one or more increases in the Revolving Loan Commitments (“Increased Revolving Loan Commitments”), it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Term Loan Commitment or Increased Revolving Loan Commitment as a result of any such request by written notice the Borrower;
(ii) any Lender or other Eligible Assignee may provide an Incremental Term Loan Commitment without the consent of any other Lender; provided, that any Eligible Assignee that (x) is not a Lender, an affiliate of a Lender or an Approved Fund shall be subject to the consent (not to be unreasonably withheld) of the Administrative Agent from time or (y) is providing an Increased Revolving Loan Commitment shall be subject to timethe consent (not to be unreasonably withheld) of the Administrative Agent, request the Swingline Lender and the Issuing Lenders;
(iii) each provision of Incremental Term Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) of $25,000,000 and each provision of Increased Revolving Facility Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) of $5,000,000;
(iv) after giving effect to the establishment of such Incremental Term Loan Commitments or Increased Revolving Loan Commitments, the Maximum Consolidated Senior Secured Leverage Condition (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in an amount not equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) shall be satisfied on the date such Incremental Term Loan Commitments or Increased Revolving Loan Commitments are established;
(v) each Incremental Commitment Agreement pursuant to exceed which Incremental Term Loan Commitments are being provided shall specifically designate the Tranche of the Incremental Amount from one or more Incremental Revolving Lenders Term Loan Commitments being provided thereunder (which may include Tranche shall be a new Tranche (i.e., not the same as any existing LenderTranche of Term Loans or Incremental Term Loan Commitments) willing unless the requirements of following Section 1.11(c) are satisfied);
(vi) each Lender agreeing to provide an (x) Incremental Term Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Commitment Agreement as provided in Section 1.01(c) 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 or (y) an Increased Revolving Facility Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, have a Revolving Loan Commitment from and after the date of the related Incremental Commitment Agreement;
(vii) in no event shall the Maturity Date of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be earlier than the Maturity Date of any other Tranche of Loans (or the Revolving Loan Commitments) outstanding at the time such Incremental Term Loans are incurred;
(viii) in no event shall the Weighted Average Life to Maturity of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be less than the Weighted Average Life to Maturity of any other Tranche of Term Loans outstanding at the time such Incremental Term Loans are incurred;
(ix) after giving effect to the establishment of such Incremental Term Loan Commitments and Increased Revolving Loan Commitments, as the case may beBorrower shall be in compliance with Sections 9.08 and 9.09 (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in their own discretionan amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) at such time;
(x) the Applicable Margin, minimum Eurodollar Rate, if any, and minimum Base Rate, if any, for the Incremental Term Loans shall be determined by the Borrower and the applicable Lenders or Eligible Assignees providing such Incremental Term Loans; provided, however, that (i) each the interest rate margins for the Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval Term Loans shall not be unreasonably withheld) greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the Initial Term Loans plus 25 basis points (unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee interest rate margins applicable to the existing Revolving Facility Commitments that is being Term Loans are increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of achieve the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amountforegoing), (ii) solely for purposes of the aggregate amount of foregoing clause (i), the interest rate margins applicable to any Initial Term Loans or Incremental Revolving Facility Commitments, which Term Loans shall not exceed be deemed to include all upfront or similar fees or original issue discount (but excluding bona fide arrangement fees) payable by the Borrower generally to the Lenders providing such Initial Term Loans or such Incremental Amount, Term Loans based on an assumed four-year life to maturity) and (iii) if the date on which lowest permissible Eurodollar Rate is greater than 1.50% or the lowest permissible Base Rate is greater than 2.50% for such Incremental Revolving Facility Commitments are requested to become effective (Term Loans, the difference between such “Increased Amount Date”)floor” and 1.50%, (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments in the case of Eurodollar Loans, or Canadian Revolving Facility Commitments2.50%, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) in the terms case of such FILO Commitments, including pricingBase Rate Loans, shall be set forth in such noticeequated to interest rate margin for purposes of clause (i) above;
(xi) except as provided above, if applicable, the terms and conditions applicable to Incremental Term Loans shall be as agreed determined by the relevant Borrower and the Lenders providing such Incremental Revolving LendersTerm Loans; provided that to the extent such terms are materially different from those of the Initial Term Loans, the Borrowers, and such terms shall be reasonably satisfactory to the Administrative Agent); and
(xii) the Borrower shall provide the Administrative Agent with notice of each request for Incremental Term Loan Commitments pursuant to this Section 1.11 contemporaneously with the making of each such request.
(b) The Borrowers At the time of any provision of Incremental Term Loan Commitments of a given Tranche pursuant to this Section 1.11, (i) the Borrower, and each Lender or other Eligible Assignee which agrees to provide an Incremental Revolving Lender Term Loan Commitment (each an “Incremental Term Loan Lender”) shall execute (which execution may be in counterparts) and deliver to the Administrative Agent an Incremental Assumption Commitment Agreement (it being understood that a single Incremental Commitment Agreement shall be executed and delivered by all Incremental Term Loan Lenders providing Incremental Term Loan Commitments in response to a particular request for same made by the 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 Term Loan 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) VHS Holdco I and its Subsidiaries shall have delivered such other documentation amendments, modifications and/or supplements to the Security Documents (if any) as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the additional Obliga- tions to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the Security Documents; (iii) the Administrative Agent shall receive an acknowledgment from the Credit Parties that the Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are entitled to the benefits of the applicable Credit Documents; and (iv) the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Administrative Agent (which, unless otherwise requested by the Administrative Agent, may be the Borrower’s General Counsel) and dated such date, covering such matters as the Administrative Agent may reasonably request. The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of the parties hereto hereby agrees that upon the effectiveness of any each Incremental Assumption Commitment Agreement, this Agreement shall be deemed amended .
(c) Notwithstanding anything to the extent (but only to contrary contained above, the extent) necessary to increase the U.S. Revolving Facility Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or the Canadian Revolving FacilityIncremental Term Loan Lenders, as the case may be, by pursuant to each Incremental Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement, which designation may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., ▇-▇, ▇-▇, ▇-▇, ▇-▇, etc.), provided that the parties to a given Incremental Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Commitment Agreement shall have the same Maturity Date and the same Weighted Average Life to Maturity as the Tranche of Term Loans to which the new Incremental Term Loans are being added, and shall bear interest at the same rates (i.e., have the same Applicable Margins and other interest rate terms) applicable to such Tranche;
(ii) the new Incremental Term Loans shall have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Revolving Facility Commitments evidenced therebyTerm Loans are being added, except thereby increasing the amount of each then remaining Scheduled Term Loan Repayment of the respective Tranche proportionately, provided that any Scheduled Term Loan Repayments relating to Incremental Term Loans being added to the Tranche of Initial Term Loans shall be determined in accordance with Section 4.02(b)); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 1.02, such Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the respective Tranche on 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 so that the existing Lenders with respect to such Tranche continue to have the same participation (by amount) in each Borrowing as required by they had before the making of the new Incremental Term Loans of such Tranche. To the extent the provisions of the preceding clause (iii) require that Lenders making new Incremental Term Loans add the same 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 sentence day of such Interest Period).
(d) Upon each increase in the Revolving Loan Commitments pursuant to this clause (b) Section 2.11, each Lender with a Revolving Loan Commitment immediately prior to such increase will automatically and as required by clause (c). Any without further act be deemed to have assigned to each Lender providing an Increased Revolving Loan Commitment, and each such Lender with an Increased Revolving Loan Commitment will automatically and without further act be deemed to have assumed, a portion of such existing Lender’s participations hereunder in the Letter of Credit Outstandings and Swingline Loans such that, after giving effect to each such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) assignment and furnished to the other parties hereto. In additionassumption of participations, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to percentage of the Administrative Agent an amendment to aggregate outstanding (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations participations hereunder in Letter of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, Credit Outstandings and (ii) an amendment participations hereunder in Swingline Loans held by each Lender with a Revolving Loan Commitment will equal the RL Percentage of such additional Lender (after giving effect to Section 5.02(bsuch Increased Revolving Loan Commitments) and (b) if, on the date of the U.S. Collateral Agreement such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due prior to the FILO Lenders in a customary fashion following effectiveness of such Increased Revolving Loan Commitment be prepaid from the payment in full proceeds of all other Obligations of additional Revolving Loans made hereunder (reflecting such Increased Revolving Loan Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.08. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and cash collateralization of outstanding Letters of Credit, but prior pro rata payment requirements contained elsewhere in this Agreement shall not apply to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or transactions effected pursuant to the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)immediately preceding sentence.
Appears in 1 contract
Incremental Commitments. (a) After Each Incremental Lender hereby agrees, severally and not jointly, to make an Incremental Loan to the Amendment Borrower, on the Effective Date and Restatement Effective Dateimmediately after giving effect to the amendments described in Section 2, in Dollars in a principal amount equal to the amount set forth opposite such Incremental Lender’s name on Schedule I attached hereto (each, an “Incremental Commitment” and, collectively, the Borrowers may“Incremental Commitments”), by written notice to on the Administrative Agent from time to timeterms set forth herein and in the Credit Agreement, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be and subject to the approval conditions set forth herein. The Incremental Loans shall be deemed to be “Loans” as defined in the Credit Agreement for all purposes of the Administrative Agent (which approval Credit Agreement, shall not bear interest as provided in Section 2.07 of the Credit Agreement, shall mature and be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, due and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be payable in full on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Maturity Date, and (yexcept as expressly provided otherwise herein) shall otherwise have terms and provisions identical to those applicable to the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by Loans outstanding immediately prior to the relevant Incremental Revolving Lenders, Effective Date (the Borrowers, and the Administrative Agent“Existing Loans”).
(b) The Borrowers Notwithstanding anything to the contrary contained herein or in the Credit Agreement, the Incremental Loans shall initially constitute a single Borrowing of Loans for all purposes under the Credit Agreement, with an initial Interest Period that shall commence on the Effective Date and each that shall end on the last day of the Interest Period applicable to the Existing Loans, and with a Eurodollar Rate for such Interest Period established pursuant to the definition of such term in the Credit Agreement.
(c) Each Incremental Revolving Lender (i) confirms that a copy of the Existing Credit Agreement, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and make its Incremental Loan, have been made available to such Incremental Lender; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, any joint lead arranger or joint bookrunner, or any other Lender or agent and based on such documents and information as it shall execute deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and deliver authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement as are delegated to the Administrative Agent an Incremental Assumption Agreement by the terms thereof, together with such powers as are reasonably incidental thereto; and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of the parties hereto hereby (iv) acknowledges and agrees that upon the effectiveness of any Effective Date such Incremental Assumption Lender shall be a “Lender” and an “Incremental Lender” under, and for all purposes of, the Credit Agreement, this Agreement and shall be deemed amended subject to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, and bound by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basisthereof, and (z) shall perform all the obligations of and shall have all rights of a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, Lender and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)Incremental Lender thereunder.
Appears in 1 contract
Sources: 364 Day Term Loan Agreement (Becton Dickinson & Co)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Term Loan Commitments in an amount not to exceed in the aggregate the Incremental Amount from one or more Incremental Revolving Term Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Term Loan Commitments in their own discretion; provided, that (i) each Incremental Revolving Term Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Term Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments an Affiliate of a Lender or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionan Approved Fund. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)effective.
(b) The Borrowers Borrower and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Term Loan Commitment of such Incremental Revolving Term Lender. Each Incremental Assumption Agreement shall specify that from and after the effectiveness of the Incremental Assumption Agreement and the funding thereunder, the associated Incremental Term Loans shall thereafter be Term A Loans or Term A-1 Loans, as the case may be.. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary necessary, which includes amending Section 2.10, to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided that in the event that the Incremental Term Loan Commitments are used to finance a Permitted Business Acquisition, the condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be limited to customary “specified representations” and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, and the condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall be made by the Borrower at the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with the existing Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans are in the form of additional Term A Loans or Term A-1 Loans, as applicable, when originally made, and are included in each Borrowing and repayment (including pursuant to Section 2.10(a)(i)) of outstanding Term A Loans or Term A-1 Loans, as applicable, 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 Lenders to effect the foregoing.
(e) Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (j) of this Section 2.20)) or any other Loan Document, pursuant to one or more offers made from time to time by the Borrower to all Lenders on a pro rata basis (“Extension Offers”), the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Term A Loans to each such Lender and to otherwise modify the terms of such Lender’s Term A Loans pursuant to the terms of the relevant Extension Offer (including increasing the interest rate or fees and/or modifying the amortization schedule in respect thereof). 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 A Loan) (such extended Term A Loan, an “Extended Term Loan”).
(f) The Borrower and each Incremental Revolving Extending Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) and (iii) of this Agreementproviso, incorporating be determined by the FILO Subfacility on customary Borrower and set forth in the Extension Offer), the Extended Term Loans shall have (x) the same terms as are the Term A Loans or (y) such other terms as shall be reasonably acceptable satisfactory to the Administrative Agent, including (wii) reallocations the final maturity date of outstanding Revolving Loans, if necessary, to evidence any Extended Term Loans shall be later than the initial Borrowing under the FILO SubfacilityTerm A Facility Maturity Date, (xiii) the addition weighted average life to maturity of voting provisions in Section 9.08 that relate solely any Extended Term Loans shall be longer than the remaining weighted average life to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments maturity of the FILO Loans at any time when Revolving Term A Loans, and (iv) other than as set forth in Section 2.11(g), any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not on a greater than 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 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term A Loan (or applicable portion thereof) will be automatically designated an Extended Term Loan. For purposes of this Agreement and the other Loan Documents, if such Extending Lender is extending a Term A Loan (or portion thereof), such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan.
(h) [Reserved].
(i) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including this Section 2.20), (i) the aggregate amount of Extended Term Loans, will not be included in the calculation of the Incremental Amount, (ii) an amendment no Extended Term Loan is required to Section 5.02(bbe in any minimum amount or any minimum increment, (iii) except as set forth in the applicable Extension Offer, any Extending Lender may extend all or any portion of its Term A Loans pursuant to one or more Extension Offers (subject to applicable proration in the case of overparticipation) (including one or more extensions of any Extended Term Loan), (iv) there shall be no condition precedent to any Extension of any Term A Loan at any time or from time to time other than (A) delivery of notice to the Administrative Agent of such Extension and the terms of the U.S. Collateral Extended Term Loans implemented thereby and (B) a representation by the Borrower in the applicable Incremental Assumption Agreement or Section 5.02(b) that the representations and warranties set forth in the Loan Documents are true and correct in all material respects as of the Canadian Collateral Agreementeffective date of such Extension, with the same effect as applicablethough made on and as of such date, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due except to the FILO Lenders extent any such representation or warranty expressly relates to an earlier date (in which case such representation or warranty was true and correct in all material respects as of such earlier date), (v) no consent of any Lender or Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans and/or Commitments (or a customary fashion following portion thereof), (vi) all Extended Term Loans and all obligations in respect thereof shall be Obligations under this Agreement and the payment in full of all other Obligations of Loan Documents that are secured on a pari passu basis with the Revolving Lenders Term A Loans and cash collateralization of outstanding Letters of Credit, but prior (vii) no Lender shall be required to consent to any payments extension of any Loan and/or Commitment (or any portion thereof), which consent shall be in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)each Lender’s sole discretion.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; providedprovided that in the case of Incremental Revolving Commitments either, that at the election of the Borrowers, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including Administrative Agent shall withhold approval if any of the Pricing Grid) and the Commitment Fee applicable L/C Issuers object to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreasedLender) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and or (ii) the Letter of Credit Commitment may not be allocated under, and no Letters of Credit may be requested by the Borrowers under, such Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. 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 5.0 million and a minimum amount of $25 20.0 million or equal to the remaining Incremental AmountAmount or in each case such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with terms identical to Term B Loans or Term B-1 Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Term B Loans or the Term B-1 Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be commitments to make additional Revolving Facility Commitments Loans on the same terms as the Initial Revolving Loans or Canadian commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Facility Commitments, and Loans (v) whether such Incremental “Other Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentLoans”).
(b) The Borrowers and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that
(i) except as to pricing, amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrowers and their Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B Loans and the Term B-1 Loans (as determined in good faith by the Borrowers), (x) then-current market terms (as determined in good faith by the Borrowers), (y) in the case of unsecured Other Term Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrowers) or (z) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrowers, junior in right of security with the Term B Loans and the Term B-1 Loans, or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans and the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and the Term B-1 Loans and shall not be subject to clause (viii) below),
(iii) the final maturity date of any Other Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence,
(iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans and the Term B-1 Loans (without giving effect to any amortization or prepayments on the Term B Loans, the Term B-1 Loans or Other Term Loans),
(v) except as to pricing, final maturity date, participation in voluntary and mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) and (vii) of this proviso, be determined by the Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrowers and their Subsidiaries than the terms and conditions, taken as a whole, applicable to the Initial Revolving Loans (as determined in good faith by the Borrowers), (x) then-current market terms (as determined in good faith by the Borrowers), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrowers) or (z) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrowers, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that (wa) is a Dollar denominated term loan, (b) is incurred prior to the twelve-montheighteen-month anniversary of the Closing Date, (x) has an outside maturity date less than one year after the latest maturity date of the initial Term B Loans, (y) is not incurred in connection with a Permitted Business Acquisition or any other acquisition or Investment that is not prohibited by this Agreement2020 Incremental Effective Date and (zc) ranks pari passu in right of security with the Term BB-1 Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of suchthe Term BB-1 Loans on the Closing2020 Incremental Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term BB-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 Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term BB-1 Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term BB-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 BB-1 Loans then outstanding,
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the Collateral; and
(xi) any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced therebythereby as provided for in Section 9.08(e) (including, except without limitation, any amendment to Section 2.10(a) as required by may be necessary to reflect the last sentence amortization of this clause (b) and as required by clause (cany such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the Borrowers conditions set forth in clause (c) of Section 4.01 shall be satisfied and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment shall have received a certificate to that effect dated such date and executed by a Responsible Officer of a 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 or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrowers) or (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable (with respect to the Borrowers) shall have occurred and be continuing or would result therefrom.
(d) Each of the parties hereto hereby agrees that the Administrative AgentAgent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), including (w) reallocations when originally made, are included in each Borrowing of the outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition applicable Class of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, Term Loans on a standalone pro rata basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Facility Loans in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) Incremental Revolving Facility Commitments (other than Noticed Bank ProductsOther Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section
Appears in 1 contract
Sources: Incremental Assumption Agreement (Caesars Entertainment, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers 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 Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or, solely in connection with clause (ii) of the definition of the term “Incremental Amount,” at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, provided that (i) 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 (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionLender. 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 million 5,000,000 and a minimum amount of $25 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”)effective, (iviii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be (x) commitments to make additional Revolving Facility Commitments or Canadian Loans on the same terms as the Initial Revolving Facility Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Facility Loans (“Other Revolving Facility Loans”) and (iv) in the case of Incremental Term Loan Commitments, and (v) whether such Incremental Revolving Facility Term Loan Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments shall be requested on a single Increased Amount Date, and commitments to make term loans with terms identical to Term B Loans or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such notice, if applicable, and shall be as agreed by mandatory prepayments and/or other terms different from the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentTerm B Loans (“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Facility Loans shall have the same terms as the Term B Loans or Initial Revolving Facility Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.20 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans will be established as a separate facility from the then existing Term Loans, shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Facility Loans incurred pursuant to clause (a) of this Section 2.20 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Facility Loans (provided that if such Other Revolving Facility Loans rank junior in right of security with the Initial Revolving Facility Loans, such Other Revolving Facility Loans will be established as a separate facility from the then existing Revolving Facility Loans, and shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Facility Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Facility Loans, there shall be no amortization and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.20 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Repricing Effective Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Repricing Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent 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 Eurocurrency 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 Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(viii) (A) such Other Revolving Facility Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Facility Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(ix) there shall be no obligor in respect of any Incremental Loans that is not a Loan Party, and, if such Incremental Loans are secured, shall only be secured by Collateral. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided for in Section 9.09(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.20 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the Borrowers conditions set forth in clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a 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 with respect to the Borrower under Sections 7.01(b), (h) or (i) shall have occurred and be continuing and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may 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 (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be 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 effect the 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 this Section 2.20), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the scheduled amortization in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) 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 the Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Incremental Revolving Extending Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.20(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this Agreementproviso, incorporating be determined by the FILO Subfacility on customary Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as are an existing Class of Term Loans or (y) such other terms as shall be reasonably acceptable satisfactory to the Administrative Agent, including (wii) reallocations the final maturity date of outstanding 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 Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, Facility Commitment shall have (x) the addition same terms as an existing Class of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, Revolving Facility Commitments or (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, have such other terms as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).shall be rea
Appears in 1 contract
Sources: First Lien Credit Agreement
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers 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 Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition, New Project or any other acquisition or similar Investment that is not prohibited by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, New Project, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) 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 approval approvals shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionLender. 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 million 5,000,000 and a minimum amount of $25 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective (the “Increased Amount Date”)effective, (iviii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be (x) commitments to make additional Revolving Facility Commitments Loans on the same terms as the Initial Revolving Loans or Canadian (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Facility Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, and (v) whether such Incremental Revolving Facility Term Loan Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments shall be requested commitments to make term loans on a single Increased Amount Date, and the same terms as the Term B Loans or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such notice, if applicable, and shall be as agreed by mandatory prepayments and/or other terms different from the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentTerm B Loans (“Other Term Loans”).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
Appears in 1 contract
Incremental Commitments. 1.1 Each Incremental Lender that is an Existing Lender hereby agrees that (ai) After its Commitment will be increased by the amount of its Incremental Commitment set forth on Schedule 1 attached hereto effective as of the First Amendment and Restatement Effective Date, (ii) after giving effect to such increase, its total Commitments will be the Borrowers mayamount of its “Commitment” set forth on Schedule 1 attached hereto, (iii) it shall continue to be a Lender under the Credit Agreement and (iv) this Amendment constitutes the incremental commitment agreement for such Lender required by written notice Section 2.13 of the Credit Agreement.
1.2 Each Incremental Lender that is a New Lender hereby agrees (i) to become a Lender under the Credit Agreement effective as of the First Amendment Effective Date with a Commitment equal to its “Commitment” set forth on Schedule 1 attached hereto, (ii) that it shall be a party in all respects to, and bound as a Lender in all respects by, the Credit Agreement and the other Loan Documents, (iii) this Amendment constitutes the incremental commitment agreement for such Lender required by Section 2.13 of the Credit Agreement and (iv) that delivered to the Administrative Agent from time (and, if applicable, the Borrower Representative) herewith are (A) all such documents as required to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide be delivered by such Incremental Revolving Facility CommitmentsLender pursuant to Section 3.01 of the Credit Agreement, as duly completed and executed by such Incremental Lender, and (B) an Administrative Questionnaire in the case may beform supplied by the Administrative Agent, in their own discretion; providedduly completed by such Incremental Lender.
1.3 On the First Amendment Effective Date, that (i) each of the Existing Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Lenders shall purchase from each of the Existing Lenders, at the principal amount thereof, such interests in the outstanding Loans and participations in Letters of Credit outstanding on such date that will result in, after giving effect to all such assignments and purchases, each Existing Lender shall be subject and each Incremental Lender holding its pro rata share of the outstanding Loans and participations in Letters of Credit after giving effect to the approval addition of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and Commitments hereby; (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments be deemed, for all purposes, a Commitment and each loan made thereunder shall be on deemed, for all purposes, a Loan and have the same terms as the any existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, Loan and in (iii) each Incremental Lender shall constitute a Lender with respect to its Incremental Commitment and all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such matters relating thereto.
1.4 Each Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that Lender (i) up to $250 million confirms that it has received a copy of the Incremental Revolving Facility Commitments in Credit Agreement and the aggregate may be provided in other Loan Documents, together with copies of the form of FILO Commitments, subject financial statements referred to the requirements of clause (b) of therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Section 2.21 and Amendment; (ii) agrees that it will, independently and without reliance upon the Incremental Revolving Facility Commitments may be Administrative Agent or any other Lender or agent thereunder and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21Credit Agreement; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) appoints and authorizes the date Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which such by the terms of the Credit Agreement are required to be performed by it as a Lender.
1.5 Notwithstanding the limitation set forth in Section 2.13(a) of the Credit Agreement, each Existing Lender party hereto hereby acknowledges and agrees that the aggregate Incremental Revolving Facility Commitments are requested to become effective (as of the “Increased Amount Date”), (iv) whether such First Amendment Effective Date will exceed $200,000,000 and consents to the aggregate Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)on Schedule 1 attached hereto.
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
Appears in 1 contract
Sources: First Amendment and Incremental Commitment Agreement (American Midstream Partners, LP)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Term Loan Commitments in an amount not to exceed in the aggregate the Incremental Amount from one or more Incremental Revolving Term Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Term Loan Commitments in their own discretion; provided, that (i) each Incremental Revolving Term Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Term Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments an Affiliate of a Lender or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionan Approved Fund. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)effective.
(b) The Borrowers Borrower and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Term Loan Commitment of such Incremental Revolving Term Lender. Each Incremental Assumption Agreement shall specify that from and after the effectiveness of the Incremental Assumption Agreement and the funding thereunder, the associated Incremental Term Loans shall thereafter be Term A Loans. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary necessary, which includes amending Section 2.10, to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided that in the event that the Incremental Term Loan Commitments are used to finance a Permitted Business Acquisition, the condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be limited to customary “specified representations” and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, and the condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall be made by the Borrower at the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with the existing Term A Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans are in the form of additional Term A Loans, when originally made, and are included in each Borrowing and repayment (including pursuant to Section 2.10(a)(i)) of outstanding Term A 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 Lenders to effect the foregoing.
(e) Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (j) of this Section 2.20)) or any other Loan Document, pursuant to one or more offers made from time to time by the Borrower to all Lenders on a pro rata basis (“Extension Offers”), the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Term A Loans to each such Lender and to otherwise modify the terms of such Lender’s Term A Loans pursuant to the terms of the relevant Extension Offer (including increasing the interest rate or fees and/or modifying the amortization schedule in respect thereof). 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 A Loan (such extended Term A Loan, an “Extended Term Loan”).
(f) The Borrower and each Incremental Revolving Extending Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) and (iii) of this Agreementproviso, incorporating be determined by the FILO Subfacility on customary Borrower and set forth in the Extension Offer), the Extended Term Loans shall have (x) the same terms as are the Term A Loans or (y) such other terms as shall be reasonably acceptable satisfactory to the Administrative Agent, including (wii) reallocations the final maturity date of outstanding Revolving Loans, if necessary, to evidence any Extended Term Loans shall be later than the initial Borrowing under the FILO SubfacilityTerm A Facility Maturity Date, (xiii) the addition weighted average life to maturity of voting provisions in Section 9.08 that relate solely any Extended Term Loans shall be longer than the remaining weighted average life to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments maturity of the FILO Loans at any time when Revolving Term A Loans, and (iv) other than as set forth in Section 2.11(g), any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not on a greater than 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 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term A Loan (or applicable portion thereof) will be automatically designated an Extended Term Loan. For purposes of this Agreement and the other Loan Documents, if such Extending Lender is extending a Term A Loan (or portion thereof), such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan.
(h) [Reserved].
(i) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including this Section 2.20), (i) the aggregate amount of Extended Term Loans, will not be included in the calculation of the Incremental Amount, (ii) an amendment no Extended Term Loan is required to Section 5.02(bbe in any minimum amount or any minimum increment, (iii) except as set forth in the applicable Extension Offer, any Extending Lender may extend all or any portion of its Term A Loans pursuant to one or more Extension Offers (subject to applicable proration in the case of overparticipation) (including one or more extensions of any Extended Term Loan), (iv) there shall be no condition precedent to any Extension of any Term A Loan at any time or from time to time other than (A) delivery of notice to the Administrative Agent of such Extension and the terms of the U.S. Collateral Extended Term Loans implemented thereby and (B) a representation by the Borrower in the applicable Incremental Assumption Agreement or Section 5.02(b) that the representations and warranties set forth in the Loan Documents are true and correct in all material respects as of the Canadian Collateral Agreementeffective date of such Extension, with the same effect as applicablethough made on and as of such date, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due except to the FILO Lenders extent any such representation or warranty expressly relates to an earlier date (in which case such representation or warranty was true and correct in all material respects as of such earlier date), (v) no consent of any Lender or Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans and/or Commitments (or a customary fashion following portion thereof), (vi) all Extended Term Loans and all obligations in respect thereof shall be Obligations under this Agreement and the payment other Loan Documents that are secured on a pari passu basis with the Term A Loans and (vii) no Lender shall be required to consent to any extension of any Loan and/or Commitment (or any portion thereof), which consent shall be in full of all other Obligations of each Lender’s sole discretion.
(j) Each Extension shall be consummated pursuant to procedures set forth in the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but associated Extension Offer; provided that the Borrower shall cooperate with the Administrative Agent prior to making any payments in Extension Offer to establish reasonable procedures with respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreementto mechanical provisions relating to such Extension, as applicable) (including, without limitation, timing, rounding and other than Noticed Bank Products)adjustments.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers may, by written notice to the Administrative Agent from time to time, request Each Incremental Revolving Facility Commitments in Lender that is an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, Increasing Lender hereby agrees that (i) each its Revolver Commitment will be increased by the amount of its Incremental Revolving Commitment set forth on Annex B attached hereto effective as of the Amendment Effective Date (as defined below), (ii) after giving effect to such increase, its total Revolver Commitment will be the amount of its “Total Revolver Commitment” set forth on Annex B attached hereto, and (iii) it shall continue to be a Lender under the Amended Credit Agreement.
(b) Each Incremental Lender that is an Additional Lender hereby agrees (i) to become a Lender under the Amended Credit Agreement effective as of the Amendment Effective Date with a Revolver Commitment equal to its Incremental Commitment set forth on Annex B attached hereto and (ii) that it shall be subject a party in all respects to, and bound as a Lender in all respects by, the Amended Credit Agreement and the other Loan Documents.
(c) On the Amendment Effective Date, (i) each of the existing Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the outstanding Revolving Loans and participations in Letters of Credit outstanding on such date that will result in, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit being held by existing Lenders and Incremental Lenders ratably in accordance with their Pro Rata Share after giving effect to the approval addition of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a LenderCommitments to the Revolver Commitments, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments be deemed, for all purposes, a Revolver Commitment and each loan made thereunder shall be on deemed, for all purposes, a Revolving Loan and have the same terms as the any existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, Loan and in all respects (iii) each Incremental Lender shall become a part Lender with respect to its Revolver Commitment and all matters relating thereto.
(d) Each Incremental Lender (i) confirms that it has received a copy of the U.S. Revolving Facility Amended Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment, (ii) agrees that it will, independently and without reliance upon Agent or Canadian Revolving Facility, as applicable, hereunder any other Lender or agent thereunder and based on such terms; provided that documents and information as it shall deem appropriate at the Applicable Margin time, continue to make its own credit decisions in taking or not taking action under the Amended Credit Agreement, (including iii) appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under the Pricing Grid) Amended Credit Agreement and the Commitment Fee applicable other Loan Documents as are delegated to Agent by the existing Revolving Facility Commitments terms thereof, together with such powers as are reasonably incidental thereto, (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Amended Credit Agreement are required to be performed by it as a Lender, (v) confirms that it is being increased by such Incremental Revolving Facility Commitments shall automatically be increased an Eligible Transferee, and (but in no event decreasedvi) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply it is an Additional Lender, (A) agrees that it will perform in accordance with this clause (ii); and provided further, that (i) up to $250 million their terms all of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (obligations which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) by the terms of the Loan Documents are required to be performed by it as a Lender and (B) certifies that it has delivered to the Par Borrower the forms prescribed by the Internal Revenue Service of the United States certifying as to its status for purposes of determining exemption from United States withholding taxes with respect to all payments to be made to it under the Amended Credit Agreement or such FILO Commitmentsother documents as are necessary to indicate that all such payments are subject to such rates at a rate reduced by an applicable tax treaty.
(e) Each Lender party hereto (including, including pricingfor the avoidance of doubt, each undersigned Lender that is not an Incremental Lender) hereby agrees that the Borrower shall not be required to make any Funding Losses payments to such Lender which may otherwise be required under Section 2.12(b)(ii) of the Credit Agreement solely resulting from the increase in the Revolver Commitments effected pursuant to this Amendment; provided, that each Lender’s waiver of such Funding Losses payments set forth in such noticethis Section 1.1(e) is a limited, if applicableone-time waiver, and nothing contained herein shall be as agreed by the relevant Incremental Revolving Lendersobligate Agent or any Lender to grant any additional or future waiver with respect to, the Borrowersor in connection with, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each any provision 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Amended Credit Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all any other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)Loan Document.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request (for cash or in exchange for other consideration) Incremental Revolving Facility Term Loan Commitments in an aggregate amount for all such Incremental Term Loan Commitments not to exceed the Incremental Amount from one or more Incremental Revolving Term Lenders (which may include any existing Lender) willing , each of which shall be entitled to provide agree or decline to participate in such Incremental Revolving Facility Commitments, as the case may be, Term Loan Commitments in their own its sole discretion); provided, provided that (i) each Incremental Revolving Lender such person shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments withheld or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (iidelayed); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which in the case of Incremental Term Loan Commitments, shall be in minimum increments principal amounts of $5 million and a minimum amount of $25 million or 20,000,000 or, if lower, equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the “Increased Amount Date”date of such notice unless the Administrative Agent otherwise reasonably agrees), and (iviii) in the case of Incremental Term Loan Commitments, whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility Commitments are commitments to make additional Term Loans or Canadian Revolving Facility Commitments, and commitments to make term loans with terms different from the Term Loans (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement in respect of Incremental Term Loan Commitments shall be deemed amended to specify the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount terms of the Incremental Revolving Facility Commitments evidenced therebyTerm Loans to be made thereunder; provided that, without the prior written consent of the Majority Lenders, (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and (except as required by to pricing and amortization) shall have the last sentence same terms as the Term Loans, (ii) the final maturity date of this clause any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (biii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans and (iv) if the initial yield on such Other Term Loans (as required by clause (c). Any such deemed amendment may be memorialized in writing determined by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished equal to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations sum of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to margin above the FILO Subfacility, Adjusted LIBO Rate on such Other Term Loans and (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on if such Other Term Loans are initially made at a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement discount or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).Lenders making the same receive a fee directly or indirectly from the
Appears in 1 contract
Sources: Term Loan Credit Agreement (CGG)
Incremental Commitments. (a) After Prior to the Amendment and Restatement Effective Commitment Termination Date, the Borrowers Borrower may, by written notice to the Administrative Agent from time to timeFacility Agent, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Dateany such increase, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant any “Incremental Revolving Lenders, the Borrowers, and the Administrative AgentCommitment”).
(b) The Borrowers No increase to the existing Commitments shall occur, and no Person may provide an Incremental Commitment, in each case, without the prior written consent of the Facility Agent and each Lender, which consent shall be in the sole discretion of the Facility Agent and the Lenders (each approved Person, if any, an “Incremental Revolving Lender”).
(c) No Lender or any other Person shall have any obligation to provide any or all of the Incremental Commitments until such time such Person becomes an Incremental Lender, and any Lender may elect or decline, in its sole discretion, to provide an Incremental Commitment.
(d) Each Incremental Commitment shall become effective as of the date agreed to among Borrower, the Facility Agent and the applicable Incremental Lenders (the “Incremental Increase Date”), so long as (i) no Event of Default shall exist on such Incremental Increase Date before or after giving effect to such Incremental Commitments; (ii) the Incremental Commitments shall be effected pursuant to one or more joinder agreements, in form and substance satisfactory to the Facility Agent and the Lenders, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 2.11(c); and (iii) Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Facility Agent in connection with any such transaction.
(e) On any Incremental Increase Date, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender having an existing Commitment shall assign to each of the Incremental Lenders having a Commitment, and each such Incremental Lender shall execute purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Advances outstanding on the Incremental Increase Date as shall be necessary in order that, after giving effect to all such assignments and deliver purchases, such Advances will be held by such Lenders having existing Commitments and Incremental Lenders ratably in accordance with their Commitments after giving effect to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment addition of such Incremental Revolving Lender. Each of Commitments to the parties hereto hereby agrees that Commitments; (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Advance made thereunder (an “Incremental Advance”) shall be deemed, for all purposes, an Advance and (iii) each Incremental Lender shall become a Lender with respect to the Incremental Commitment and all matters relating thereto.
(f) The Facility Agent shall notify the Lenders, promptly upon the effectiveness determination of any Incremental Assumption AgreementIncrease Date, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to Incremental Commitments and the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving LoansIncremental Lenders, and (ii) an amendment in the case of each notice to any Lender having Exposure, the respective interests in such Lender’s Advances, in each case subject to the assignments contemplated by this Section 5.02(b2.14.
(g) The terms and provisions of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due Incremental Advances shall be identical to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)Advances.
Appears in 1 contract
Sources: Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers mayThe Borrower may on one or more occasions, by written notice to the Administrative Agent from time (which shall promptly deliver a copy thereof to timeeach Lender), request the establishment of Incremental Revolving Facility Commitments in an Commitments, provided that the aggregate amount not to exceed of all the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide Commitments established hereunder shall not exceed $20,000,000. Each such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that notice shall specify (i) each the date on which the Borrower proposes that the Incremental Revolving Lender Commitments shall be subject effective, which shall be a date not less than 15 days after the date on which such notice is delivered to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a LenderAgent, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested, and shall offer to each Non-Defaulting Lender the opportunity to provide a portion of the amount of the Incremental Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to its Applicable Percentage (calculated disregarding the remaining Incremental Amount)Commitments of Defaulting Lenders, (iiif any) thereof. Each Lender shall, by notice to the aggregate amount of Incremental Revolving Facility Commitments, which shall Borrower and the Administrative Agent given not exceed the Incremental Amount, (iii) more than seven days after the date on which the Administrative Agent shall have delivered the Borrower’s notice, either agree to provide all or a portion of its Applicable Percentage (as so calculated) of the amount of the Incremental Commitments being requested or decline to do so (and any Lender that does not deliver such notice within such period of seven days shall be deemed to have declined to do so). If, on the seventh day after the Administrative Agent shall have delivered the Borrower’s notice, the Lenders shall have agreed pursuant to the preceding sentence to provide Incremental Revolving Facility Commitments are requested in an aggregate amount less than the amount of the Incremental Commitments being requested, the Borrower may arrange for one or more banks or other financial institutions, which may include any Lender, to provide Incremental Commitments in an aggregate amount equal to the amount of such deficiency; provided that any Person that the Borrower proposes to become effective (the “Increased Amount Date”), (iv) whether such an Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such noticeLender, if applicablesuch Person is not then a Lender, must be an Eligible Assignee and shall must be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and reasonably acceptable to the Administrative Agent)Agent and each Issuing Bank.
(b) The Borrowers terms and conditions 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, it being agreed, however, that in connection with the effectiveness of any Incremental Commitment, subject to the consent of the Borrower, this Agreement may be modified to increase (but not decrease) the Applicable Rate and fees payable for the account of the Lenders pursuant to Section 2.11, so long as such increase is effective for the benefit of all the Lenders hereunder on equal terms.
(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 Commitments and the Administrative Agent; provided that no Incremental Commitments shall execute become effective unless (i) no Default or Event of Default shall have occurred and deliver be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) the Borrower shall have delivered to the Administrative Agent an a certificate of the chief executive officer or the chief financial officer of the Borrower, dated as of the date of effectiveness thereof, certifying that the representations and warranties of each Loan Party set forth in the Loan Documents are 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, in each case on and as of such date, 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 have been so true and correct on and as of such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Assumption Agreement Commitments and such other documentation as the related transactions under this Section 2.20 and (iv) 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 specify 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 evidence this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section (including any increase referred to in paragraph (b) above).
(d) Upon the effectiveness of an Incremental Revolving Facility Commitment of any Incremental Lender, (i) such Incremental Lender, if not already a 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, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Revolving Lender. Each 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 parties hereto hereby agrees that term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Assumption AgreementCommitment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount Exposure of the Incremental Revolving Facility Commitments evidenced therebyLender holding such Commitment, except 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, each Lender shall assign to each Incremental Lender holding such Incremental Commitment, and each such Incremental Lender shall purchase from each Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and participations in Letters of Credit and Protective Advances outstanding on such date as required shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit and Protective Advances will be held by all the last sentence Lenders (including such Incremental Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of this clause (b) and as required by clause (c)such Incremental Commitment. Any such deemed amendment may be memorialized in writing by the The Administrative Agent with shall notify the Borrowers’ consent (not Lenders promptly of the effectiveness of any Incremental Commitments, advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be unreasonably withheld) and furnished made pursuant to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)paragraph.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), Incremental Revolving Facility Commitments Commitments, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Loans in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million 5,000,000 and a minimum amount of $25 million 25,000,000 or equal to the then-remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of any Incremental Term Commitment, whether such Incremental Term Loan Commitments are to be Term A-1 Loan Commitments, Term A-2 Loan Commitments or commitments to make term loans with pricing and/or other terms different from the Term A-1 Loans and the Term A-2 Loans (“Other Term Loans”) and (iv) in the case of any Incremental Revolving Facility Commitment, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be additional Revolving Facility Commitments or Canadian commitments to make revolving loans with pricing and/or other terms different from the Revolving Facility Commitments, and Loans (v) whether such Incremental “Other Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentLoans”).
(b) The Borrowers Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Loans; provided, that
(i) the final maturity date of any Other Term Loans shall be no earlier than the Term A-2 Facility Maturity Date;
(ii) the final maturity date of any Other Revolving LenderLoans shall be no earlier than the Revolving Facility Maturity Date;
(iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term A-2 Loans;
(iv) Holdings and the Borrower shall use their commercially reasonable efforts to increase the face amount of the Title Policies with respect to the Jesup Facility to an amount that is at least equal to the aggregate amount of all Loans and unused Commitments under the Facilities, under all secured Refinancing Debt (without duplication of amounts under the Facilities), and under all Incremental Facilities then outstanding or requested, provided that (A) in no event shall the aggregate face amount of the Title Policies exceed $1,250,000,000, and (B) the Administrative Agent may, from time to time, and without any requirement for Lender consent, waive such requirement to increase the amount of such title insurance;
(v) the Leverage Ratio Toggle Test (tested only on the date of the initial incurrence of the applicable Incremental Facility) shall be satisfied on a Pro Forma Basis (giving effect to the assumptions referred to in the last paragraph of the definition of “Incremental Amount”), provided that to the extent the proceeds of any Incremental Facility are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, compliance with the Leverage Ratio Toggle Test shall be calculated on a Pro Forma Basis at the time that the definitive documentation for such Permitted Business Acquisition or Material Investment is executed;
(vi) the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental Term Facility incurred within 12 months after the Closing Date will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Term A-2 Facility, unless the Applicable Margin with respect to the Term A-2 Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Term Facility and the all-in yield on the Term A-2 Facility minus 0.50% and the Applicable Margin with respect to the Term A-1 Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Term A-2 Facility; provided, that this clause (b)(vi) shall not apply if the applicable Incremental Term Facility ranks junior in right of security to the other Facilities or is initially unsecured, in each case, as provided in clause (viii) below,
(vii) the all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental Revolving Facility incurred at any time after the Closing Date and taking the form of a new tranche of revolving credit facilities will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Revolving Facility, unless the Applicable Margin with respect to the Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Revolving Facility and the all-in yield on the Revolving Facility minus 0.50%;
(viii) Incremental Term Facilities may rank pari passu in right of security with, or junior in right of security to, the other Facilities (but shall in any case be secured (and, in the case of any Incremental Term Facilities ranking junior in right of security to the other Facilities, shall be subject to customary intercreditor terms to be reasonably acceptable to the Administrative Agent and the Borrower), except during a Collateral Suspension Period, when Incremental Term Facilities shall be unsecured and shall be subject to substantially the same provisions with respect to a Collateral Reinstatement Event as the Facilities, in which case, such applicable Incremental Term Facility will be established as a separate facility from the then existing Term Loans; and
(ix) the other terms and documentation in respect of any Incremental Facility (including, without limitation, as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security), to the extent not consistent with the Facilities, shall be as agreed between the Borrower and the Lenders providing such Incremental Facility (but in any case subject to the specific limitations and requirements set forth above). Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (c)provided for in Section 11.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, it being understood that such Incremental Assumption Agreement may, without the Borrowers and each consent of any Lender (other than the applicable Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver Lenders), effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to opinion of the Administrative Agent, including to effect the provisions of this Section 2.15.
(wc) reallocations Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.15 unless (i) on the date of outstanding Revolving Loanssuch effectiveness, if necessarythe condition set forth in paragraph (b) of Section 5.05 shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to evidence the initial Borrowing extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.02 and such additional customary documents and filings as the FILO SubfacilityAdministrative Agent may reasonably require to assure that the Incremental Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Lenders in the applicable Incremental Assumption Agreement in accordance with clause (b)(viii) above, junior to) the existing Loans; and (iii) no Default or Event of Default shall have occurred and be continuing or would result therefrom; provided, to the extent the proceeds of any Incremental Facility are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, (x) the addition absence of voting provisions in the existence of any Default or Event of Default (other than an Event of Default under Section 9.08 that relate solely 8.01(b), (c), (h) or (i)) shall not be a condition to the FILO Subfacility, incurrence of such Incremental Facility and (y) the addition foregoing clause (i) shall be limited, to the extent agreed with the Incremental Lender(s) providing such Incremental Facility, to customary “specified representations” and those representations of assignment provisions the seller or the target company (as applicable) included in Section 9.04 allowing for the assignment acquisition agreement related to such Permitted Business Acquisition that are material to the interests of the Lenders and only to the extent that Holdings or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans and Other Revolving Loans) in the form of additional Term A-1 Loans, Term A-2 Loans or Revolving Facility Commitments, or FILO CommitmentsLoans, as the case may be, on a standalone basiswhen originally made, and (z) a prohibition on optional prepayments are included in each Borrowing of the FILO Loans at any time when Revolving outstanding Term A-1 Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement Term A-2 Loans or Section 5.02(b) of the Canadian Collateral AgreementRevolving Facility Loans, as applicable, executed on a pro rata basis. The Borrower agrees that Section 3.05 shall apply to any conversion of Eurodollar Rate Loans to Base Rate Loans reasonably required by the Collateral Administrative Agent (as defined therein) in order to provide for effect the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)foregoing.
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers Any Borrower may, by written notice to the Administrative Agent from time to timetime prior to the First Amendment Effective Date, request Incremental Term Loan Commitments and, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), Incremental Revolving Facility Commitments Commitments, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Loans in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million 5,000,000 and a minimum amount of $25 million 25,000,000 or equal to the then-remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of any Incremental Term Loan Commitment, whether such Incremental Term Loan Commitments are to be Term A-1 Loan Commitments, Term A-2 Loan Commitments or commitments to make term loans with pricing and/or other terms different from the Term A-1 Loans and the Term A-2 Loans (“Other Term Loans”) and (iv) in the case of any Incremental Revolving Facility Commitment, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be additional USD Revolving Facility Commitments, additional Multicurrency Revolving Facility Commitments or Canadian commitments to make revolving loans with pricing and/or other terms different from the Revolving Facility Commitments, and Loans (v) whether such Incremental “Other Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentLoans”).
(b) The Borrowers applicable Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the parties hereto hereby agrees applicable Incremental Loans; provided, that
(i) the final maturity date of any Other Term Loans shall be no earlier than the Term A-2 Facility Maturity Date; provided that upon at Holdings’ election (in its sole discretion) Other Term Loans in an aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a final maturity date earlier than the effectiveness Term A-2 Facility Maturity Date but no earlier than the Term A-1 Facility Maturity Date;
(ii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date;
(iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term A-2 Loans; provided that at Holdings’ election (in its sole discretion) Other Term Loans and/or Incremental Notes (pursuant to Section 2.15(e)(ii)(E)) in a combined aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term A-2 Loans but no shorter than the remaining weighted average life to maturity of the Term A-1 Loans;
(iv) Holdings and Products shall use their commercially reasonable efforts to increase the face amount of the Title Policies with respect to the Jesup Facility to an amount that is at least equal to the aggregate amount of all Loans and unused Commitments under the Facilities, under all secured Refinancing Debt (without duplication of amounts under the other Facilities), and under all Incremental Facilities (without duplication of amounts under the other Facilities) then outstanding or requested, provided that (A) in no event shall the aggregate face amount of the Title Policies exceed $1,250,000,000, and (B) the Administrative Agent may, from time to time, and without any requirement for Lender consent, waive such requirement to increase the amount of such title insurance;
(v) the Leverage Ratio Test (tested only on the date of the initial incurrence of the applicable Incremental Facility) shall be satisfied on a Pro Forma Basis (giving effect to the assumptions referred to in the last paragraph of the definition of “Incremental Amount”), provided that to the extent the proceeds of any Incremental Assumption AgreementFacility (or Incremental Notes) are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, this Agreement compliance with the Leverage Ratio Test shall be calculated on a Pro Forma Basis at the relevant Test Date, and if, after giving effect to such Permitted Business Acquisition or Material Investment and the other transactions to be entered into in connection therewith on a Pro Forma Basis as if they had occurred at the beginning of the most recent Test Period ending prior to such Test Date, the applicable Borrower could have incurred such Incremental Facility (or Incremental Notes) on such Test Date in compliance with the Leverage Ratio Test, the Leverage Ratio Test shall be deemed amended to have been complied with;
(vi) the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the extent arranger of such Incremental Facilities or its affiliates) applicable to any Incremental Term Facility incurred within 12 months after the Restatement Date will not be more than 0.50% higher than the corresponding all-in yield (but only determined on the same basis) applicable to the extentTerm A-2 Facility, unless the Applicable Margin with respect to the Term A-2 Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Term Facility and the all-in yield on the Term A-2 Facility minus 0.50% and the Applicable Margin with respect to the Term A-1 Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Term A-2 Facility; provided, that this clause (b)(vi) necessary shall not apply if the applicable Incremental Term Facility ranks junior in right of security to increase the U.S. other Facilities or is initially unsecured, in each case, as provided in clause (viii) below,
(vii) (A) the all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental USD Revolving Facility or incurred at any time after the Canadian Restatement Date and taking the form of a new tranche of revolving credit facilities will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the USD Revolving Facility, as unless the case may be, Applicable Margin with respect to the USD Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental USD Revolving Facility and the all-in yield on the USD Revolving Facility minus 0.50% and the Applicable Margin with respect to the Multicurrency Revolving Facility is increased by an amount equal to the amount of any increase in the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing interest rate margin for the assignment of USD Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).Facility;
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) After Each Incremental Lender on, and subject to the Amendment and Restatement Effective Dateoccurrence of, the Borrowers may, by written notice First Amendment Effective Date hereby severally agrees to make Loans to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments Borrower in a single Borrowing in an aggregate principal amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, Lender’s Incremental Commitments as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date opposite its name on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)Annex I attached hereto.
(b) The Borrowers Incremental Lenders, the Lenders, the Facility Agent, the Security Trustee, the Borrower and the Guarantors agree that this First Amendment effects the provisions of Section 2.21 of the Credit Agreement with respect to such Incremental Commitments and shall constitute a Joinder Agreement pursuant to and in accordance with Section 2.21 of the Credit Agreement.
(c) Upon the incurrence of a Loan pursuant to this First Amendment, such Loan shall be subject to the interest rates (including the Margin) and terms, repayment, voluntary prepayment terms and mandatory prepayment terms applicable to the Loans as set forth in the Credit Agreement.
(d) On (and subject to the occurrence of) the First Amendment Effective Date, each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of the parties party hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to provided in this First Amendment and the extent) necessary to increase Credit Agreement, shall have the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount rights and obligations of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) a Lender thereunder and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to under the other parties hereto. In addition, the Borrowers applicable Loan Documents.
(e) The Borrower and each Incremental Revolving Lender accepting a FILO Commitment shall execute Guarantor acknowledges and deliver to the Administrative Agent an amendment to agrees that (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable Borrower shall be liable for all Obligations with respect to all Loans made to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, Borrower pursuant to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, this First Amendment and (ii) an amendment all such Obligations (including all such Loans pursuant to Section 5.02(bthis First Amendment) shall constitute Guaranteed Obligations and shall be entitled to the benefits of the U.S. Collateral Agreement or Section 5.02(bSecurity Documents and the Guarantees.
(f) The Incremental Commitment of each Incremental Lender shall automatically terminate upon the making of the Canadian Collateral Agreement, as applicable, executed Loans pursuant to this First Amendment on the First Amendment Effective Date.
(g) The proceeds of the Loans pursuant to this First Amendment shall be used by the Collateral Agent (as defined therein) in order to provide Borrower solely for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined purposes set forth in the U.S. Collateral Agreement second recital of this First Amendment and any amounts repaid, prepaid or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)cancelled may not be reborrowed.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective DateDate has occurred, the Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments Commitments, as applicable, in an amount not to exceed 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 of this Agreement as in effect immediately prior to the Amendment Agreement Effective Date) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which which, in each case, may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own sole discretion; provided, that (i) 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 Bank and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments conditioned or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (iidelayed); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. 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 million 5,000,000 and a minimum amount of $25 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”)effective, (iviii) in the case of Incremental Term Loan Commitments, whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments commitments to make term loans with terms identical to (and which shall be requested on together with any then outstanding Term A Loans, Term A- -1 Loans or Term B Loans, as applicable, form a single Increased Amount DateClass of) Term A Loans, and Term A--1 Loans or Term B Loans or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such noticemandatory prepayments and/or other terms different from the Term A Loans, if applicable, Term A- -1 Loans and shall be as agreed by the relevant Term B Loans (“Other Incremental Revolving Lenders, the Borrowers, and the Administrative AgentTerm Loans”).
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any (x)(A) commitments to make additional Term B Loans shall have the same terms as the Term B Loans, and shall form part of the same Class as the Term B Loans, (B) commitments to make additional Term A Loans shall have the same terms as the Term A Loans, and shall form part of the same Class as the Term A Loans (and 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 Term 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) 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 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,
(iii) (x)(1) other than with respect to Permitted Earlier Maturity Debt, the final maturity date of any Incremental Term A Loans shall be no earlier than the Term A Maturity Date in effect at the date of incurrence of such Incremental Term A Loans and (2) 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 (y)
(1) other than with respect to Permitted Earlier Maturity Debt, 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 (2) 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) other than Permitted Earlier Maturity Debt, (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 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,
(v) with respect to any Other Incremental Term Loan incurred prior to the date that is 12 months after the Restatement Effective Date, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrower, 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) with the Term A Loans, Term A- -1 Loans and Term B Loans in any mandatory prepayment hereunder,
(vii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments,
(viii) Other Incremental Term Loans and Incremental Revolving Facility Commitments shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral, and
(ix) the Borrower shall be in compliance with the Financial Covenants (if applicable) at the time of the incurrence of such Incremental Term Loans and/or Incremental Revolving Facility Commitments on a Pro Forma Basis for the then most recently ended Test Period. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) no Default or Event of Default shall exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Limited Condition Transaction, (A) to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the Borrowers foregoing clause (i) and each 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 of the irrevocable notice of repayment or redemption, as applicable related to such Limited Condition Transaction (provided, that such Incremental Revolving Lender accepting 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 Loans) and (B) no Event of Default shall exist under Section 7.01(a) or, with respect to the Borrower only, under Sections 7.01(h) or 7.01(i) at the time such Incremental Term Loans are incurred; (ii) the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects (other than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans is used to finance a FILO Commitment 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 execute be limited to the Specified Representations (with the representation in Section 3.18 made on the date of funding of such Incremental Term Loans and deliver after giving effect to such Limited Condition Transaction and other transactions on such date in connection therewith) and those representations of 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 or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a result of a failure of such representations to be accurate; and (iii) the Administrative Agent an amendment shall have received documents and legal opinions consistent with those delivered on the Restatement Effective Date as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) this Agreementall Incremental Term Loans (other than Other Incremental Term Loans), incorporating when originally made, are included in each Borrowing of the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations outstanding applicable Class of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, Term Loans on a standalone pro rata basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Facility Loans in respect of Bank Products 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 EurodollarTerm SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(as defined e) Notwithstanding anything to the contrary in this Agreement: (1) this Section 2.21 is for the U.S. Collateral benefit of the Borrower and shall be applicable to a transaction only at the Borrower’s express election (provided the requirements of this Section 2.21 are otherwise met); and (2) the Transaction Support Agreement or Transactions were not implemented pursuant to this Section 2.21 and this Section 2.21 does not and will not apply to the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)Transaction Support Agreement Transactions.
Appears in 1 contract
Sources: Amendment Agreement (Qwest Corp)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers 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 Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition 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 Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) 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 approval approvals shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionLender. 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 million 5,000,000 and a minimum amount of $25 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective (the “Increased Amount Date”)effective, (iviii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be (x) commitments to make additional Revolving Facility Commitments Loans on the same terms as the Initial Revolving Loans or Canadian (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Facility Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, and (v) whether such Incremental Revolving Facility Term Loan Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments shall be requested commitments to make term loans on a single Increased Amount Date, and the same terms as the Term B Loans or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such notice, if applicable, and shall be as agreed by mandatory prepayments and/or other terms different from the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentTerm B Loans (“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans, Term B-2 Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans, Term B-2 Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(ix) (A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrower and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the Borrowers conditions set forth in clause (d) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a 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, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under the Restatement Agreement and such additional customary documents and filings (including amendments or supplements to the Mortgages and other Collateral Documents, as applicable, and title date-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents or hereunder) 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 Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be 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 Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the 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 this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) 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 Incremental Revolving Extending Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment 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) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).exc
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers Any Borrower may, by written notice to the Administrative Agent from time to timetime prior to the First Amendment Effective Date, request Incremental Term Loan Commitments and, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), Incremental Revolving Facility Commitments Commitments, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Loans in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million 5,000,000 and a minimum amount of $25 million 25,000,000 or equal to the then-remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of any Incremental Term Loan Commitment, whether such Incremental Term Loan Commitments are to be Term A-1 Loan Commitments, Term A-2 Loan Commitments or commitments to make term loans with pricing and/or other terms different from the Term A-1 Loans and the Term A-2 Loans (“Other Term Loans”) and (iv) in the case of any Incremental Revolving Facility Commitment, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be additional USD Revolving Facility Commitments, additional Multicurrency Revolving Facility Commitments or Canadian commitments to make revolving loans with pricing and/or other terms different from the Revolving Facility Commitments, and Loans (v) whether such Incremental “Other Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentLoans”).
(b) The Borrowers applicable Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the parties hereto hereby agrees applicable Incremental Loans; provided, that
(i) the final maturity date of any Other Term Loans shall be no earlier than the Term A-2 Facility Maturity Date; provided that upon at Holdings’ election (in its sole discretion) Other Term Loans in an aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a final maturity date earlier than the effectiveness Term A-2 Facility Maturity Date but no earlier than the Term A-1 Facility Maturity Date;
(ii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date;
(iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term A-2 Loans; provided that at Holdings’ election (in its sole discretion) Other Term Loans and/or Incremental Notes (pursuant to Section 2.15(e)(ii)(E)) in a combined aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term A-2 Loans but no shorter than the remaining weighted average life to maturity of the Term A-1 Loans;
(iv) Holdings and Products shall use their commercially reasonable efforts to increase the face amount of the Title Policies with respect to the Jesup Facility to an amount that is at least equal to the aggregate amount of all Loans and unused Commitments under the Facilities, under all secured Refinancing Debt (without duplication of amounts under the other Facilities), and under all Incremental Facilities (without duplication of amounts under the other Facilities) then outstanding or requested, provided that (A) in no event shall the aggregate face amount of the Title Policies exceed $1,250,000,000, and (B) the Administrative Agent may, from time to time, and without any requirement for Lender consent, waive such requirement to increase the amount of such title insurance;
(v) the Leverage Ratio Toggle Test (tested only on the date of the initial incurrence of the applicable Incremental Facility) shall be satisfied on a Pro Forma Basis (giving effect to the assumptions referred to in the last paragraph of the definition of “Incremental Amount”), provided that to the extent the proceeds of any Incremental Assumption AgreementFacility (or Incremental Notes) are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, this Agreement compliance with the Leverage Ratio Toggle Test shall be calculated on a Pro Forma Basis at the relevant Test Date, and if, after giving effect to such Permitted Business Acquisition or Material Investment and the other transactions to be entered into in connection therewith on a Pro Forma Basis as if they had occurred at the beginning of the most recent Test Period ending prior to such Test Date, the applicable Borrower could have incurred such Incremental Facility (or Incremental Notes) on such Test Date in compliance with the Leverage Ratio Toggle Test, the Leverage Ratio Toggle Test shall be deemed amended to have been complied with;
(vi) the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the extent arranger of such Incremental Facilities or its affiliates) applicable to any Incremental Term Facility incurred within 12 months after the Restatement Date will not be more than 0.50% higher than the corresponding all-in yield (but only determined on the same basis) applicable to the extentTerm A-2 Facility, unless the Applicable Margin with respect to the Term A-2 Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Term Facility and the all-in yield on the Term A-2 Facility minus 0.50% and the Applicable Margin with respect to the Term A-1 Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Term A-2 Facility; provided, that this clause (b)(vi) necessary shall not apply if the applicable Incremental Term Facility ranks junior in right of security to increase the U.S. other Facilities or is initially unsecured, in each case, as provided in clause (viii) below,
(vii) (A) the all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental USD Revolving Facility or incurred at any time after the Canadian Restatement Date and taking the form of a new tranche of revolving credit facilities will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the USD Revolving Facility, as unless the case may be, Applicable Margin with respect to the USD Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental USD Revolving Facility and the all-in yield on the USD Revolving Facility minus 0.50% and the Applicable Margin with respect to the Multicurrency Revolving Facility is increased by an amount equal to the amount of any increase in the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing interest rate margin for the assignment of USD Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).Facility;
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, on one or more occasions, request Incremental Revolving Facility Commitments in an additional aggregate principal amount not to exceed the Incremental Amount Commitment Cap from one or more Incremental Revolving Lenders (which may include any existing LenderLender (each of which shall be entitled to agree or decline to participate in its sole discretion)) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld, delayed or conditioned), the Swingline Lender (which approval shall not be unreasonably withheld, delayed or conditioned) and the Borrower (in its sole discretion) unless such Incremental Revolving Lender is a an existing Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments (except with respect to any underwriting, upfront or Canadian Revolving Facility similar fees that may be agreed to among the Borrower and the Incremental Lenders providing such Incremental Commitments, as applicable, ) and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, Commitments hereunder on such terms; provided that provided, that, with the consent of the Borrower, the Applicable Margin (including the Pricing Grid) Rate and the Commitment Fee Rate applicable to the then existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments Commitment to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i1) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million 1,000,000 and a minimum amount of $25 million 10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Amount), (ii2) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, and (iii3) the date on which such Incremental Revolving Facility Commitments are requested to become 4905-5289-3475 v.5 effective (the “Increased Amount Date”), (iv) whether such . The Borrower shall have no obligation to offer any Lender the opportunity to participate in any Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving LenderAgreement. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, Commitments by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s written consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.22 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and each Incremental Revolving Lender accepting a FILO Commitment (c) of Section 4.02 shall execute be satisfied and deliver to the Administrative Agent shall have received a certificate to that effect dated such date and executed by an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments Authorized Officer of the FILO Loans at any time when Revolving LoansBorrower, and (ii) an amendment the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation to Section 5.02(b) the extent reasonably required by the Administrative Agent, and such additional documents and filings as the Administrative Agent may reasonably require to assure that the Loans in respect of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed Incremental Commitments are secured by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of ratably with all other Obligations Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Loans in respect of Bank Products (as defined Incremental Commitments, when originally made, are included in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)each Borrowing of outstanding Revolving Loans on a pro rata basis.
Appears in 1 contract
Incremental Commitments. (a) After The Borrower shall have the Amendment right in coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.08, but without requiring the consent of any of the Lenders, to request at any time and Restatement from time to time after the Effective Date, the Borrowers may, by written notice that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below and which are satisfactory to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount (with such consent not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld)) unless such provide Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate which may be provided in the form of FILO Incremental Term Loan Commitments or Incremental Revolving Commitments, and, subject to the requirements applicable terms and conditions contained in this Agreement, make Incremental Loans pursuant thereto, which may be in the form of term loans (such term loans, “Incremental Term Loans”) or revolving loans (such revolving loans, “Incremental Revolving Loans”), as applicable; provided, however, that:
(i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent and the Borrower an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.21 and 2.08, such Lender shall not be obligated to fund any Incremental Loans,
(ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements consent of clause any other Lender,
(ciii) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth [reserved],
(i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (iiiv) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Facility Commitments, which Commitments that may be incurred under this Section 2.08 shall not exceed the Maximum Incremental Amount,
(v) all Incremental Loans made 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 Security Documents, and guaranteed under the Guaranty, on a pari passu basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranty, and pari passu in terms of payment (iiiincluding, without limitation, pursuant to Section 9.1(a) of the Security Agreement),
(vi) the maturity date on which of any Incremental Loans or Incremental Commitments shall not be earlier than the Maturity Date,
(vii) the Weighted Average Life to Maturity of any such Incremental Revolving Facility Commitments are requested Term Loans shall be no shorter than the Weighted Average Life to become effective Maturity of the Term Loans outstanding immediately prior to the incurrence of such Incremental Loans,
(viii) in the event the All-in Yield on any Incremental Term Loan (as reasonably determined by the Administrative Agent) exceeds the All-In Yield applicable to the Initial Term Loans issued on the Borrowing Date by more than 50 basis points per annum (the amount of such excess, the “Increased Amount DateYield Differential”), then the interest rate then in effect for the Initial Term Loans issued on the Borrowing Date shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans,
(ivix) whether any Incremental Term Loans shall otherwise be no more than pari passu with the existing Term Loans with respect to mandatory prepayments and other pre- payment rights; and
(x) the covenants and defaults applicable to such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility CommitmentsLoans shall be no more favorable in any material respects, and taken as a whole, to the Incremental Lenders than the terms of the Initial Term Loans (except (A) as provided in clauses (v) whether through (viii) above, (B) covenants and defaults that are only applicable after the Maturity Date and (C) covenants (including any financial covenant) and defaults that are also added for the benefit of the Term Loans outstanding immediately prior to the incurrence of such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)Loans.
(b) The Borrowers At the time of the provision of Incremental Commitments pursuant to this Section 2.08, the Borrower, each Guarantor, the Administrative Agent and each such Lender or other Eligible Transferee that agrees to provide an Incremental Revolving Lender Commitment (each, an “Incremental Lender”) shall execute and deliver to the Borrower and the Administrative Agent an Incremental Assumption Agreement and such other documentation as Commitment Agreement, with the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment effectiveness of such Incremental Revolving Lender. Each of ’s Incremental Commitment to occur (and with the parties hereto hereby agrees that upon respective Incremental Loans to be made) on the effectiveness of any date set forth in such Incremental Assumption Commitment Agreement, this Agreement which date in any event shall be deemed amended to no earlier than the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to date on which (i) this Agreementall fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agentwithout limitation, including (w) reallocations of outstanding Revolving Loansany agreed upon upfront or arrangement fees), if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).Incremental Commitment Requirements are satisfied,
Appears in 1 contract
Sources: New First Lien Loan Agreement
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers mayThe Company 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 Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that the aggregate amount of all the Incremental Commitments established hereunder shall not exceed $500,000,000 during the term of this Agreement. Each such notice shall specify (i) each the date on which the Company proposes that the Incremental Revolving Lender Commitments shall be subject effective, which shall be 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 notice is delivered to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a LenderAgent, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood agreed that (x) all FILO Commitments shall be requested on a single Increased Amount Dateany 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 terms of such FILO Commitments, including pricing, shall be set forth in such noticeCompany proposes to become an Incremental Lender, if applicablesuch Person is not then a Lender, and shall must be as agreed approved by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent, each Issuing Lender and each Swingline Lender (such approval not to be unreasonably withheld or delayed)).
(b) The Borrowers 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 Revolving Lender providing such Incremental Commitments and the Administrative Agent; provided, that no Incremental Commitments shall execute become effective unless (i) on the date of effectiveness thereof, both immediately prior to and deliver 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 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 such date, except to the extent such representations and warranties 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 earlier date), (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section, (iv) the Company shall have delivered to the Administrative Agent an Incremental Assumption Agreement such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and such other documentation documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction and (v) each Subsidiary Guarantor (if any) shall reasonably specify have reaffirmed its Guarantee of the Obligations. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to evidence this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Revolving Facility 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 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 Revolving Lender. Each Lender and (B) the Total 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 parties hereto hereby agrees that term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Assumption AgreementCommitment, this Agreement 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 deemed amended to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the extent (but only effectiveness of such Incremental Commitments shall pay to the extentAdministrative Agent in same day funds an amount equal to the difference between (A) necessary the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to increase the U.S. Revolving Facility or effectiveness of such Incremental Commitments) multiplied by (2) the Canadian Revolving Facility, as the case may be, by 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 Facility Borrowings, (iii) each Incremental Lender that shall not have had a Commitment prior to the effectiveness of such Incremental Commitments evidenced therebyshall pay to Administrative Agent in 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, except as required (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, 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 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 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 or such Borrower shall deliver such 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 sentence day of this clause the Interest Period relating thereto.
(bf) and as required by clause (c). Any such deemed amendment may be memorialized in writing The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent with of any notice from the Borrowers’ consent (not Company referred to in Section 2.05(a) and of the effectiveness of any Incremental Commitments, in each case, advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the payments required to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment made pursuant to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products2.05(e).
Appears in 1 contract
Sources: Credit Agreement (Tyson Foods Inc)
Incremental Commitments. (a) After the Amendment and Restatement Effective DateLead Borrower may, the Borrowers mayfrom time to time, by written notice to the Administrative Agent from time to timeAgent, request additional Revolving Commitments (collectively, “Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount Commitments”), from one or more Incremental Revolving Lenders (which may include any existing Lenderin the sole discretion of such Lenders) willing and/or Eligible Assignees who will become Revolving Lenders, in an aggregate principal amount of up to provide $100,000,000; provided that at the time of the incurrence of such Incremental Revolving Facility CommitmentsCommitments and immediately after giving effect thereto and to the use of the proceeds thereof, as the case may be, in their own discretionno Default shall have occurred and be continuing or would result therefrom; provided, provided further that (i1) each Incremental such Person, if not already a Revolving Lender hereunder, shall be subject to the approval of the Administrative Agent Agent, the L/C Issuers and the Swingline Lender (which approval approvals shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Lender is a Lender, and (ii2) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on Lead Borrower may make only five such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionrequests. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million 10,000,000 and a minimum amount of $25 million or equal to the remaining Incremental Amount25,000,000), and (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (which shall not be less than five Business Days nor more than 60 calendar days after the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms date of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as unless otherwise agreed to by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender providing an Incremental Commitment shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 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 (i) to reflect the existence and terms of the Incremental Commitments evidenced thereby and (ii) to increase the U.S. Revolving Facility or hard dollar amounts in the Canadian Revolving Facilitydefinitions of “Weekly Borrowing Base Reporting Trigger Event”, as the case may be“Weekly Borrowing Base Reporting Trigger Period”, by the amount of the Incremental Revolving Facility Commitments evidenced thereby“Cash Dominion Trigger Event”, except as required by the last sentence of this clause (b“Cash Dominion Trigger Period”, “Collateral Administration Trigger Event”, “Collateral Administration Trigger Period” and “Payment Conditions” and in Sections 2.2(h) and as required by clause (c)7.12, in each case in proportion to the increase in the Revolving Commitments after giving effect to such Incremental Commitments. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Lead Borrower’s consent (not to be unreasonably withheldwithheld or delayed) and furnished to the other parties hereto. In addition, the Borrowers and .
(c) The terms of each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver be reasonably satisfactory to the Administrative Agent an amendment to and in any event:
(i) this Agreementeach Incremental Commitment (and the Revolving Loans made thereunder) shall rank pari passu in right of payment and of security with the existing Revolving Commitments (and the Revolving Loans made thereunder); and
(ii) all material terms of each Incremental Commitment (and the Revolving Loans made thereunder) shall be identical to the existing Revolving Commitments (and the Revolving Loans made thereunder) (excluding upfront and other similar fees paid at the closing of such Incremental Commitment).
(d) No Incremental Commitments shall become effective unless, incorporating on the FILO Subfacility on date of such effectiveness, (i) the conditions set forth in paragraphs (a) and (b) of Section 4.2 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of Lead Borrower; and (ii) the Administrative Agent shall have received closing certificates, opinions of counsel and other customary terms documentation requested by the Administrative Agent.
(e) 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, following the establishment of any Incremental Commitments, the outstanding Revolving Loans are reasonably acceptable to held by the Revolving Lenders in accordance with their new Applicable Percentages. This may be accomplished by the Administrative Agent, including (w) reallocations in consultation with Lead Borrower, by requiring each outstanding LIBORBSBY Borrowing of outstanding the relevant Class to be converted into an ABR Borrowing of such Class on the date of each additional Revolving Commitment, 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, if necessarythe Administrative Agent shall consult with Lead Borrower regarding the foregoing and, to evidence the initial Borrowing under the FILO Subfacilityextent practicable, (x) the addition of voting provisions in Section 9.08 will attempt to pursue options that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Productsminimize breakage costs).
Appears in 1 contract
Incremental Commitments. (a) After The Company may on one or more occasions after the Amendment and Second Restatement Effective Date, the Borrowers may, by written notice to the Administrative Agent from time to timeAgent, request prior to the Maturity Date, the establishment of Incremental Commitments; provided that the aggregate, cumulative amount of all Incremental Commitments established pursuant to this Section 2.21 after the Second Restatement Effective Date shall not exceed $50,000,000. Each such notice shall specify (i) the date on which the Company proposes that the Incremental Commitments shall be effective, which shall be 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 notice is delivered to the Administrative Agent, (B) the amount of the Incremental Commitments being requested, (C) the identity of each Lender or other Person that the Company proposes become an Incremental Revolving Facility Commitments in an Lender with respect thereto, together with the proposed aggregate amount not to exceed of the Incremental Amount from one Commitment for each such Lender or more other Person (it being agreed that (x) any Lender approached to provide any Incremental Revolving Lenders (which Commitment may include any existing Lender) willing 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 Facility Loans and other extensions of credit to be made thereunder shall be identical to the terms and conditions of the Commitments and Revolving Loans and other extensions of credit made thereunder; provided that if the interest rate spread applicable to Revolving Loans to be made under any Incremental 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 effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each applicable Borrower, each Incremental Revolving Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Revolving Loans and other extensions of credit thereunder to be made on such date, (ii) 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 Section 6.12 and Section 6.13 on a pro forma basis in accordance with Section 1.04(b), (iv) the Company shall make any payments required to be made 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), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such 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 Revolving Lenders) ratably in accordance with their own discretionApplicable 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 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 the effectiveness of such Incremental Commitments shall either be prepaid on such date or refinanced on such date (subject to the satisfaction of applicable borrowing conditions) with Revolving Loans made on such 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 shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased will make ABR Loans by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver transferring funds to the Administrative Agent in an Incremental Assumption Agreement and amount equal to the aggregate outstanding amount of such other documentation as Loans of such Type times a percentage obtained by dividing the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment amount of such Incremental Revolving Lender. Each 's Incremental Commitment by the Aggregate Commitment (after giving effect to the effectiveness of the parties hereto Incremental Commitments on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR Loans held by the Revolving Lenders other than the Incremental Revolving Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Incremental Revolving Lenders, in such amounts so that, after giving effect thereto, all ABR Loans will be held by the Revolving Lenders in accordance with their then-current Applicable Percentages. On the 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 the Revolving Loans of such Borrower being prepaid. The Administrative Agent and the Lenders hereby agrees 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 and of the effectiveness of any Incremental Assumption AgreementCommitments, this Agreement shall be deemed amended to in each case advising the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount Lenders of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) details thereof and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations Applicable Percentages of the Revolving Lenders after giving effect thereto and cash collateralization of outstanding Letters of Credit, but prior the assignments deemed to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Productshave been made pursuant to Section 2.21(e).
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Term Loan Commitments in an amount not to exceed in the aggregate the Incremental Amount from one or more Incremental Revolving Term Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Term Loan Commitments in their own discretion; provided, that (i) each Incremental Revolving Term Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Term Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments an Affiliate of a Lender or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionan Approved Fund. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)effective.
(b) The Borrowers Borrower and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Term Loan Commitment of such Incremental Revolving Term Lender. Each Incremental Assumption Agreement shall specify that from and 57 after the effectiveness of the Incremental Assumption Agreement and the funding thereunder, the associated Incremental Term Loans shall thereafter be Term A Loans. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary necessary, which includes amending Section 2.10, to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided that in the event that the Incremental Term Loan Commitments are used to finance a Permitted Business Acquisition, the condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be limited to customary “specified representations” and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, and the condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall be made by the Borrower at the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with the existing Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans are in the form of additional Term A Loans when originally made, and are included in each Borrowing and repayment (including pursuant to Section 2.10(a)(i)) of outstanding Term A Loans. The Borrower agrees that Section 2.16 shall apply to any conversion of EurocurrencyTerm Benchmark Loans to ABR Loans reasonably required by the Lenders to effect the foregoing.
(e) Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (j) of this Section 2.20)) or any other Loan Document, pursuant to one or more offers made from time to time by the Borrower to all Lenders on a pro rata basis (“Extension Offers”), the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Term A Loans to each such Lender and to otherwise modify the terms of such Lender’s Term A Loans pursuant to the terms of the relevant Extension Offer (including increasing the interest rate or fees and/or modifying the amortization schedule in respect thereof). 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 A Loan) (such extended Term A Loan, an “Extended Term Loan”).
(f) The Borrower and each Incremental Revolving Extending Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) and (iii) of this Agreementproviso, incorporating be determined by the FILO Subfacility on customary Borrower and set forth in the Extension Offer), the Extended Term Loans shall have (x) the same terms as are the Term A Loans or (y) such other terms as shall be reasonably acceptable satisfactory to the Administrative Agent, including (wii) reallocations the final maturity date of outstanding Revolving Loans, if necessary, to evidence any Extended Term Loans shall be later than the initial Borrowing under the FILO SubfacilityTerm A Facility Maturity Date, (xiii) the addition weighted average life to maturity of voting provisions in Section 9.08 that relate solely any Extended Term Loans shall be longer than the remaining weighted average life to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments maturity of the FILO Loans at any time when Revolving Term A Loans, and (iv) other than as set forth in Section 2.11(g), any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not on a greater than 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 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term A Loan (or applicable portion thereof) will be automatically designated an Extended Term Loan. For purposes of this Agreement and the other Loan Documents, if such Extending Lender is extending a Term A Loan (or portion thereof), such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan.
(h) [Reserved].
(i) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including this Section 2.20), (i) the aggregate amount of Extended Term Loans, will not be included in the calculation of the Incremental Amount, (ii) an amendment no Extended Term Loan is required to Section 5.02(bbe in any minimum amount or any minimum increment, (iii) except as set forth in the applicable Extension Offer, any Extending Lender may extend all or any portion of its Term A Loans pursuant to one or more Extension Offers (subject to applicable proration in the case of overparticipation) (including one or more extensions of any Extended Term Loan), (iv) there shall be no condition precedent to any Extension of any Term A Loan at any time or from time to time other than (A) delivery of notice to the Administrative Agent of such Extension and the terms of the U.S. Collateral Extended Term Loans implemented thereby and (B) a representation by the Borrower in the applicable Incremental Assumption Agreement or Section 5.02(b) that the representations and warranties set forth in the Loan Documents are true and correct in all material respects as of the Canadian Collateral Agreementeffective date of such Extension, with the same effect as applicablethough made on and as of such date, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due except to the FILO Lenders extent any such representation or warranty expressly relates to an earlier date (in which case such representation or warranty was true and correct in all material respects as of such earlier date), (v) no consent of any Lender or Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans and/or Commitments (or a customary fashion following portion thereof), (vi) all Extended Term Loans and all obligations in respect thereof shall be Obligations under this Agreement and the payment other Loan Documents that are secured on a pari passu basis with the Term A Loans and (vii) no Lender shall be required to consent to any extension of any Loan and/or Commitment (or any portion thereof), which consent shall be in full of all other Obligations of each Lender’s sole discretion.
(j) Each Extension shall be consummated pursuant to procedures set forth in the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but associated Extension Offer; provided that the Borrower shall cooperate with the Administrative Agent prior to making any payments in Extension Offer to establish reasonable procedures with respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreementto mechanical provisions relating to such Extension, as applicable) (including, without limitation, timing, rounding and other than Noticed Bank Products)adjustments.
Appears in 1 contract
Sources: Term Loan Agreement (Anywhere Real Estate Group LLC)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the The Borrowers may, by written notice to the Administrative Agent from time on up to timetwo (2) occasions, request Incremental incremental increases in the Maximum Revolving Facility Commitments Credit Amount in an amount not to exceed the Incremental Amount aggregate amount of $25,000,000 from one or more Incremental Revolving additional Lenders (which may include any existing Lender) willing to provide such Incremental incremental Revolving Facility Commitments, as the case may be, in their own sole discretion; provided, that (i) each Incremental Revolving additional Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments withheld or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (iidelayed); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental increase in the Maximum Revolving Facility Commitments Credit Amount being requested (requested, which shall be in minimum increments of not less than $5 million 5,000,000, and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental incremental increase in the Maximum Revolving Facility Commitments are requested Credit Amount is to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments . The Borrowers shall be requested on a single Increased Amount Dateresponsible for all reasonable and documented, out of pocket, fees and (y) expenses in connection with such increase, and, to the terms of such FILO Commitments, including pricing, shall be set forth extent agreed in such notice, if applicable, and shall be as agreed writing by the relevant Incremental Borrowers pursuant to Section 2.18(b), syndication expenses and fees paid to Lenders providing the additional Revolving Lenders, the Borrowers, and the Administrative Agent)Commitments.
(b) The Borrowers and each Incremental Revolving new Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment commitment of such Incremental new increase in the Maximum Revolving LenderCredit Amount. Each such documentation shall specify the terms of the applicable incremental Revolving Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Revolving Commitments shall thereafter be Revolving Commitments with the same terms as the Revolving Commitments (including as to pricing and maturity). Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreementsuch documentation, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. existence and terms of the incremental Revolving Facility or Commitments evidenced thereby (including adjusting the Canadian Commitment Percentages), and new Revolving FacilityCredit Notes shall be issued and the Borrowers shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Maximum Revolving Credit Amount, as in each case without the case may be, consent of the Lenders other than those Lenders with incremental Revolving Commitments. The fees payable by the amount Borrowers upon any such incremental Revolving Commitments shall be agreed upon by the Agent, the Lenders with incremental Revolving Commitments and the Borrowers at the time of such increase. Notwithstanding the forgoing, nothing in this Section 2.18 shall constitute or be deemed to constitute an agreement by any Lender to increase its Commitment Percentage hereunder.
(c) Notwithstanding the foregoing, no incremental Revolving Commitment shall become effective under this Section 2.18 unless (i) on the date of such effectiveness, the conditions set forth in Section 3.2 shall be satisfied and the Agent shall have received a certificate to that effect dated such date and executed by a duly authorized officer of the Incremental Revolving Facility Commitments evidenced therebyBorrowers, except (ii) the Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the last sentence of this clause (b) and as relevant amendment or other documentation and, to the extent required by clause the Agent, consistent with those delivered on the Closing Date under Section 3.1 and such additional customary documents and filings as the Agent may reasonably require, and (c). Any iii) the Borrowers shall be in pro forma compliance with the covenants set forth in Section 7 after giving effect to such deemed amendment incremental Revolving Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Agent may take any and all action as may be memorialized reasonably necessary to ensure that all Revolving Credit Advances in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In additionrespect of incremental Revolving Commitments, the Borrowers and each Incremental when originally made, are included in such aggregate Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations Credit Advance of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, Credit Advances on a standalone pro rata basis, and (z) . The Borrowers agree that Section 2.18 shall apply to any conversion of any Loan bearing interest at the Applicable LIBOR Rate to a prohibition on optional prepayments of Loan bearing interest at the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed Applicable Base Rate reasonably required by the Collateral Agent (as defined therein) in order Lenders to provide for effect the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)foregoing.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Gerber Scientific Inc)
Incremental Commitments. (a) After the Amendment and Restatement Effective DateThe Borrower may, the Borrowers mayfrom time to time, by written notice to the Administrative Agent from time to timeAgent, request additional Commitments, as applicable (collectively, “Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount Commitments”), from one or more Incremental Revolving Lenders (which may include any existing Lenderin the sole discretion of such Lenders) willing or Eligible Assignees who will become Lenders, in an aggregate principal amount for all Incremental Commitments not to provide exceed $50,000,000; provided that at the time of the incurrence of such Incremental Revolving Facility CommitmentsCommitments and immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), as no Default shall have occurred and be continuing or would result therefrom and the case may be, Borrower shall be in their own discretionPro Forma Compliance with Section 7.12(a); provided, further, that (i) each Incremental Revolving such person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in connection with any additional Commitment, the L/C Issuer and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments withheld or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (iidelayed); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility additional Commitments being requested (which shall be in minimum increments of $5 million 1,000,000 and a minimum amount of $25 million or equal to the remaining Incremental Amount), 5,000,000) and (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility additional Commitments are requested to become effective (which shall not be less than ten Business Days nor more than 60 calendar days after the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms date of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as unless otherwise agreed to by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers Borrower and each Incremental Revolving additional Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Lender. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving LenderAssumption Agreement. Each of the parties hereto hereby agrees that 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 increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheldwithheld or delayed) and furnished to the other parties hereto. In addition.
(c) The Incremental Commitments shall rank pari passu in right of payment and of security with the existing Loan Document Obligations and all terms of any additional Commitments and Credit Extensions under such additional Commitments shall be identical to the existing Commitments and Credit Extensions.
(d) No additional Commitments shall become effective under this Section 2.11 unless, on the Borrowers date of such effectiveness, (i) the conditions set forth in paragraphs (a) and each Incremental Revolving Lender accepting (b) of Section 4.2 shall be satisfied as if it was a FILO Commitment shall execute borrowing date and deliver to the Administrative Agent an amendment shall have received a certificate to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on effect dated such date and executed by a standalone basis, and (z) a prohibition on optional prepayments Financial Officer of the FILO Loans at any time when Revolving Loans, Borrower; and (ii) the Administrative Agent shall have received (with sufficient copies for each of the additional Lenders) closing certificates, opinions of counsel and other customary documentation requested by the Administrative Agent.
(e) 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 following the establishment of any additional Commitments, the outstanding Revolving Loans are held by the Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding LIBOR Borrowing of the relevant Class to be converted into an amendment ABR Borrowing of such Class on the date of each additional Commitment, or by requiring a prepayment and reborrowing of Revolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 5.02(b) of 3.5 (it being understood that, the U.S. Collateral Agreement or Section 5.02(b) of Administrative Agent shall consult with the Canadian Collateral AgreementBorrower regarding the foregoing and, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Creditextent practicable, but prior will attempt to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Productspursue options that minimize breakage costs).
Appears in 1 contract
Sources: Credit Agreement (Liberty Tax, Inc.)
Incremental Commitments. (a) After So long as the Amendment Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, 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, to request at any time and Restatement from time to time after the Effective Date, the Borrowers may, by written notice and prior to the Administrative Agent from time to timeFinal Maturity Date, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from that one or more Incremental Revolving Lenders (and/or one or more other Persons which may include any existing Lenderare Eligible Transferees and which will become Lenders as provided below) willing provide Incremental Commitments and, subject to provide such Incremental the applicable terms and conditions contained in this Agreement, make Revolving Facility CommitmentsLoans pursuant thereto, as the case may beit being understood and agreed, in their own discretion; providedhowever, that (i) each Incremental Revolving no Lender shall be subject obligated to provide an Incremental Commitment as a result of any such request by the approval of 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 (which approval shall not be unreasonably withheld) unless such an Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms Agreement in respect thereof as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and 2.15, such Lender shall not be obligated to fund 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, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the Incremental Revolving Facility Commitments may consent of any other Lender, (iii) each Eligible Transferee who will become a Lender shall be in the form Incremental European Revolving Commitments, subject required to be reasonably satisfactory to the requirements Administrative Agent, (iv) each provision of clause (c) of Incremental Commitments on a given date pursuant to this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which 2.15 shall be in a minimum increments 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 $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount)1,000,000 in excess thereof, (iiv) the aggregate amount of all Incremental Revolving Facility CommitmentsCommitments provided pursuant to this Section 2.15, which shall not exceed the Maximum Incremental AmountCommitment Amount and (vi) all Revolving Loans (and all interest, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”fees and other amounts payable thereon), (iv) whether such made pursuant to an Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments Commitment shall be requested entitled to the benefits of the guarantees and security provided under the Credit Documents to the other Obligations on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)pari passu basis.
(b) The Borrowers At 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 each such Lender or other Eligible Transferee which agrees to provide an Incremental Revolving Lender Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and Commitment Agreement, with the effectiveness of such other documentation as Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) 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 reasonably specify to evidence the Incremental Revolving Facility Commitment of have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Revolving LenderCommitment Agreement shall have been satisfied. Each of the parties hereto hereby agrees that upon The Administrative Agent shall promptly notify each Lender as to the effectiveness of any each Incremental Assumption Commitment Agreement, and at such 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 1.01(a) shall be deemed amended modified to reflect the revised Revolving Loan Commitments of the affected Lenders and (iii) to the extent (but only to requested by any Incremental Lender, Revolving Notes will be issued, at the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount expense of the Borrowers, to such Incremental Revolving Facility Commitments evidenced thereby, except as required by Lender in conformity with the last sentence requirements of this clause (b) and as required by clause Section 2.05.
(c). Any such deemed amendment may be memorialized in writing by ) At the Administrative Agent with the Borrowers’ consent (not time of any provision of Incremental Commitments pursuant to be unreasonably withheld) and furnished to the other parties hereto. In additionthis Section 2.15, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreementshall, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to in coordination with the Administrative Agent, including (w) reallocations of 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 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 the then outstanding Borrowings of the respective such Revolving Loans), if necessaryin 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 jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 2.11 and such amounts, as reasonably determined by the respective Lenders, to evidence compensate them for funding the initial Borrowing under various Revolving Loans during an existing Interest Period (rather than at the FILO Subfacilitybeginning of the respective Interest Period, (xbased upon rates then applicable thereto) the addition of voting provisions in Section 9.08 that relate solely connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the FILO Subfacilitypreceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(yd) the addition of assignment The terms and provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Loans made pursuant to the Incremental Commitments shall be identical to the Revolving Loans; 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 (including any upfront fees or original issue discount payable to the initial Lenders hereunder) unless the Applicable Margin with respect to the Revolving Loans is increased so as to cause the then applicable yield under this Agreement on the Revolving Loans 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 the Revolving Loans) made pursuant to the Incremental Commitment.
(e) In the event the Borrowers from time to time obtain any Incremental Commitments under this Section 2.15, 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 cash collateralization “Payment Conditions” and in Section 10.04(a)) shall be increased in proportion to the ratio of outstanding Letters of Credit, but such Incremental Commitments to the Total Revolving Loan Commitment as in effect immediately prior to any payments the Borrowers obtaining such Incremental Commitments and, for the avoidance of doubt, all such levels denominated in respect of Bank Products (as defined in percentages shall be calculated based on the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)Total Revolving Loan Commitment after giving effect to such Incremental Commitments.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent and each Swingline Lender (which approval shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, Commitments hereunder on such terms; provided that provided, that, the Applicable Margin (including the Pricing Grid) and the Commitment Fee Rate applicable to the then-existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments Commitment to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the i)the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million 1,000,000 and a minimum amount of $25 million 10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Amount), (ii) the ii)the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, and (iii) the iii)the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving LenderAgreement. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, Commitments by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.17 unless (i)on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (c) and each Incremental Revolving Lender accepting a FILO Commitment (d) of Section 4.2 shall execute be satisfied and deliver to the Administrative Agent an amendment shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, and (i) this Agreementii)the Administrative Agent shall have received legal opinions, incorporating board resolutions and other closing certificates and documentation to the FILO Subfacility on customary terms as are extent reasonably acceptable to required by the Administrative Agent, including in each case consistent with those delivered on the Closing Date under Section 4.1 and such additional documents and filings as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Revolving Loans.
(wd) reallocations Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, Loans on a standalone pro rata basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
Appears in 1 contract
Sources: Credit Agreement (Investment Technology Group, Inc.)
Incremental Commitments. (a) After The Borrower may from time to time after the Amendment and Restatement Effective Closing Date, the Borrowers may, by upon at least sixty (60) days’ prior written notice to the Administrative Agent from in each case, at any time prior to timethe Termination Date, request increase the aggregate Commitments (each such increase, an “Incremental Revolving Facility Commitments Increase”) at the option of the Borrower by an agreement in an amount not to exceed writing entered into by the Incremental Amount from one or more Incremental Revolving Lenders Borrower, the other Credit Parties, the Administrative Agent and each Person (which may include including any existing Lender) willing that agrees to provide a portion of such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that Increase (i) each an “Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such termsAmendment”); provided that the Applicable Margin that.
(including the Pricing Grida) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form principal amount of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the all Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments Increases shall not exceed $100 million. Such notice shall set forth 100,000,000;
(ib) the amount of the each Incremental Revolving Facility Commitments being requested (which Increase shall be in minimum increments of $5 million and a minimum amount of $25 million 20,000,000 and in integral multiples of $5,000,000 in excess thereof (or equal such lesser amounts as the Administrative Agent may agree);
(c) no existing Lender shall be under any obligation to the remaining provide any portion of any Incremental AmountIncrease and any such decision whether to provide any portion of any Incremental Increase shall be in such Lender’s sole and absolute discretion;
(d) no Default or Event of Default shall have occurred and be continuing, and no Default or Event of Default would exist after giving effect to any Incremental Increase (and treating any Incremental Increase as fully drawn for such purpose), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) both on the date on which such Incremental Revolving Facility Commitments are Increase is requested and on the date on which such Incremental Increase becomes effective;
(e) each Person providing any Incremental Increase shall be a Lender or an institution that qualifies as an Eligible Assignee and is acceptable to become the Administrative Agent and the L/C Issuer, and the Administrative Agent shall have received (A) additional commitments in respect of such requested Incremental Increase (each an “Incremental Commitment”) from such Persons and (B) documentation from each Person providing an Incremental Increase evidencing its Incremental Commitment and its obligations under this Agreement in form and substance acceptable to the Administrative Agent;
(f) the Administrative Agent shall have received:
(i) a certificate of each Credit Party dated as of the effective date of such Incremental Increase, signed by a Responsible Officer of such Credit Party acceptable to the Administrative Agent and (the “Increased Amount Date”A) certifying and attaching such Credit Party’s articles of incorporation or certificate of formation (or equivalent), bylaws or operating agreement (iv) whether or equivalent), and resolutions adopted by the board of directors or equivalent governing body of such Credit Party approving such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility CommitmentsFacility, and certifying as to the incumbency of the Responsible Officers of such Credit Party authorized to act on its behalf in connection with such Incremental Increase, and (vB) whether in the case of the Borrower, certifying that, both immediately before and after giving effect to such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that Increase, (x) all FILO Commitments the representations and warranties contained in Article IV and in the other Credit Documents are true and correct on and as of the date of such Incremental Increase, with the same effect as if made on and as of such date (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be requested on a single Increased Amount Datetrue and correct as of such date), and (y) no Default or Event of Default exists;
(ii) a certificate executed by a Financial Officer of the Borrower or the Parent certifying and demonstrating that after giving effect to the incurrence of such Incremental Increase (and treating such Incremental Increase as fully drawn for such purpose) the Borrower is in compliance with the financial covenants contained in Article VI, calculated on a Pro Forma Basis for the Reference Period most recently ended for which financial statements have been delivered under this Agreement in accordance with GAAP;
(iii) such amendments to the Security Documents as the Administrative Agent reasonably requests to cause the Security Documents to secure the Obligations after giving effect to such Incremental Increase;
(iv) to the extent requested by the Administrative Agent, customary opinions of legal counsel (including local counsel in each relevant jurisdiction) to the Credit Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Commitment), dated as of the effective date of such Incremental Increase; and
(v) such other documents and certificates it may reasonably request relating to the necessary authority for such Incremental Increase and the validity of such Incremental Increase, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(g) the terms and conditions (including interest rate, interest rate margins, fees (other than arrangement, structuring, underwriting and similar fees not paid generally to all Lenders under such Incremental Increase), prepayment terms and final maturity) of such FILO Commitments, including pricing, Incremental Commitments shall be the same as the terms applicable to the Commitments hereunder, and such Incremental Commitments shall constitute Commitments hereunder;
(h) Schedule 1.1(a) shall be deemed revised to include any increase in the Commitments pursuant to this Section 2.22 and to include thereon any Person that becomes a Lender with a Commitment pursuant to this Section 2.22; and
(i) on the effective date of such Incremental Increase, the existing Lenders with Commitments shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Loans and participation interests in Letters of Credit to the Lenders providing such noticeIncremental Commitments, if applicableand the Administrative Agent may make such adjustments to the Register as are necessary, so that after giving effect to such Incremental Increase and such assignments and adjustments, each Lender (including the Lenders providing such Incremental Commitments) will hold its pro rata share (based on its Applicable Percentage of the increased aggregate Commitments) of outstanding Loans and participation interests in Letters of Credit. The Incremental Commitments and credit extensions thereunder shall constitute Commitments and credit extensions under, and shall be as agreed entitled to all the benefits afforded by, this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the security interests created by the relevant Incremental Revolving Lenders, Security Documents and from the BorrowersGuaranty. The Lenders hereby authorize the Administrative Agent to enter into, and the Administrative Agent).
(b) The Borrowers Lenders agree that this Agreement and each the other Credit Documents shall be amended by, such Incremental Revolving Lender shall execute and deliver Amendments to the extent the Administrative Agent an and the Borrower deem necessary in order to establish Incremental Assumption Agreement and such other documentation as Commitments on terms consistent with and/or to effect the provisions of this Section 2.22. The Administrative Agent shall reasonably specify promptly notify each Lender as to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment Amendment. This Section 2.22 shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting supersede any provisions in Section 9.08 that relate solely 2.13(b) or 10.5 to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)contrary.
Appears in 1 contract
Sources: Credit Agreement (Greenbacker Renewable Energy Co LLC)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers mayThe Borrower may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject prior to the approval Maturity Date, the establishment of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable aggregate, cumulative amount of all Incremental Commitments established pursuant to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 2.19 after the Assignment and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments Amendment Effective Date shall not exceed $100 million25,000,000. Such Each such notice shall set forth specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be 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 notice is delivered to the Agent, (ii) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (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 Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments Lender or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments other Person (it being understood agreed that (x) all FILO Commitments shall be requested on a single Increased Amount Dateany 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 terms of such FILO CommitmentsAgent and, including pricing, shall be set forth in such notice, if to the extent applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agenteach Issuing Bank).
(b) The Borrowers terms and conditions of any Incremental Commitment and other extensions of credit to be made thereunder may be (i) identical to the terms and conditions of the Commitments and Loans and other extensions of credit made hereunder, (ii) in a separate tranche of revolving loans and commitments or (iii) incurred in the form of term loans, in each case as agreed by the applicable Lenders.
(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 Commitments and the Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on such date, (ii) 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 made 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).
(d) 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 execute be deemed to be a “Lender” hereunder, and deliver henceforth shall be entitled to all the Administrative Agent an 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 Assumption Agreement and Commitment shall constitute (or, in the event such other documentation as Incremental Lender already has a Commitment, shall increase) the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Lender and (B) the aggregate amount of the parties hereto hereby agrees that 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 Assumption AgreementCommitment, this Agreement 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 amended 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 such 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 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 (but only 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 extentdate 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) necessary after giving effect to increase the U.S. Revolving Facility 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 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 the effectiveness of such Incremental Commitments shall either be prepaid on such date or refinanced on such date (subject to the Canadian Revolving Facilitysatisfaction of applicable borrowing conditions) with Loans made on such date by the Lenders (including the Incremental Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, as (i) each Incremental Lender will make ABR Loans by transferring funds to the case may be, 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 Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (bon such date) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment such funds will be applied to the prepayment of outstanding ABR Loans held by the Lenders other than the Incremental Lenders, and transferred by the Agent to the Lenders other than the Incremental Lenders, in such 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 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 the Loans of 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. 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 case 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 5.02(b2.19(e).
(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 U.S. Collateral Agreement or Section 5.02(b) effectiveness of any Incremental Commitments, in each case advising the Lenders of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations details thereof and of the Revolving Applicable Percentages of the Lenders after giving effect thereto and cash collateralization of outstanding Letters of Credit, but prior the assignments deemed to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Productshave been made pursuant to Section 2.19(e).
Appears in 1 contract
Sources: Borrower Assignment and Assumption Agreement (BrightSphere Investment Group Inc.)
Incremental Commitments. (a) After Subject to the Amendment terms and Restatement conditions set forth herein, on the Commitment Increase Effective DateDate (as defined below), the Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) Commitment of each Incremental Revolving Augmenting Lender shall be subject to the approval of the Administrative Agent (which approval become effective. The Incremental Commitments shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be terminate on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee Maturity Date applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) effect under the Credit Agreement immediately prior to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective Commitment Increase Effective Date (the “Increased Amount DateExisting Commitments”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by have terms (including in respect of fees and interest rates) identical those of the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)Existing Commitments.
(b) The Borrowers From and each Incremental Revolving Lender shall execute and deliver to after the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Increase Effective Date, for all purposes of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Credit Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing Incremental Commitments shall constitute “Commitments” under the FILO Subfacility, (x) Credit Agreement of the addition of voting provisions in Section 9.08 that relate solely to same class as the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Existing Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) Loans made pursuant to the Incremental Commitments contemplated hereby shall constitute “Loans” under the Credit Agreement of same class as the Loans made pursuant to the Existing Commitments and (iii) each Augmenting Lender shall be (or in the case of any Augmenting Lender with an amendment Existing Commitment, continue to Section 5.02(bbe) a “Lender” under the Credit Agreement, and shall have all the rights and obligations of a Lender holding a Commitment under the Credit Agreement. This Agreement shall, as to each Augmenting Lender that is not already a Lender under the Credit Agreement, constitute the accession agreement referred to in clause (iii) of the U.S. Collateral Agreement or first sentence of Section 5.02(b2.10(a) of the Canadian Collateral AgreementCredit Agreement and the notice referred to in the first and second sentences of such Section 2.10(a).
(c) On the Commitment Increase Effective Date, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due Schedule 2.01 to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Credit Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)will be replaced with Schedule 2.01 attached hereto.
Appears in 1 contract
Incremental Commitments. Upon the satisfaction of the following conditions (a) After such date of satisfaction, the Amendment and Restatement “Incremental Facility Effective Date”), the total Revolving Facility Commitments shall be increased by an amount equal to the Incremental Amount:
(i) no Default or Event of Default shall have occurred and be continuing or shall result after giving effect to the Incremental Facility;
(ii) the Borrowers may, by written notice shall have paid to the Administrative Agent from time to time, request for the account of each Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders Lender (which may include any existing Lenderother than Defaulting Lenders) willing to provide such having Incremental Revolving Facility Commitments, as ratably in accordance with each such Lender’s Incremental Revolving Facility Percentage, an accordion fee (the case may be, in their own discretion; provided, that “Incremental Facility Exercise Fee”) equal to the product of (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such total Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and multiplied by (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, 0.125% per annum;
(iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (termination of the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, AB Receivables Financing and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver payment in full or provision for payment in full of all obligations owing to the Administrative Agent an Incremental Assumption Agreement and such other documentation as purchasers under the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption AgreementAB Receivables Financing, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the in each case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are manner reasonably acceptable to the Administrative Agent;
(iv) the Administrative Agent shall maintain a senior perfected security interest in substantially all of the AB Receivables owned by Wise; and
(v) the Administrative Agent shall have received a written notice signed by a Responsible Officer of each Borrower, including notifying the Administrative Agent of the Borrowers’ election to exercise the Incremental Facility and certifying as to the matters set forth in this Section 2.15. On the Incremental Facility Effective Date, (wi) reallocations each relevant Incremental Revolving Facility Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Loans, if necessary, Facility Loans of all the Lenders to evidence the initial Borrowing under the FILO Subfacility, (x) the addition equal its Pro Rata Share of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of such outstanding Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Facility Loans as of the Incremental Facility Effective Date (with such reborrowing to consist of the Types of Revolving Facility Loans, with related Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, in accordance with the requirements of Section 5.02(b2.03). The deemed payments made pursuant to clause (ii) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed immediately preceding sentence shall be accompanied by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to all accrued interest on the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Creditamount prepaid and, but prior to any payments in respect of Bank Products (each Eurodollar Rate Loan, shall be subject to indemnification by the applicable Borrower pursuant to the provisions of Section 3.05 if the deemed payment occurs other than on the last day of the related Interest Periods. Notwithstanding any provision herein or in any other Loan Document to the contrary, no Revolving Facility Loans, other Credit Events or any other financial accommodations advanced in excess of the total Revolving Facility Commitments as defined in effect immediately prior to the U.S. Collateral Agreement or Incremental Facility Effective Date shall be secured by any Real Property unless and until the Canadian Collateral Agreementflood diligence required by Sections 6.02 and 10.01 has been completed in a manner satisfactory to each Lender, as applicable) (other than Noticed Bank Products)confirmed by written notice from each such Lender to the Administrative Agent and the Borrowers after the Incremental Facility Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Constellium N.V.)
Incremental Commitments. (a) After The Borrower may, from time to time after the Amendment and Restatement Effective Closing Date, the Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from establishment of (i) one or more new term loan commitments (the “New Term Loan Commitments”), (ii) one or more additional tranches of revolving credit commitments (the “Additional Revolving Credit Commitments”) and/or (iii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Revolving Lenders (which may include any existing Lender) willing to provide Commitments”), in an aggregate amount for all such Incremental Revolving Commitments established following the FirstEighth Amendment Effective Date not in excess of the Incremental Facility CommitmentsAmount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the case Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may beseek Incremental Commitments from existing Lenders or from by any other bank, in their own discretionfinancial institution, other institutional lender or other Person that is an eligible assignee pursuant to Section 13.6(b) (any such other Person being called an “Additional Lender”); provided, that the Administrative Agent (iand, solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Additional Lender’s providing any Incremental Commitments to the extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment.
(b) Such Incremental Commitment shall become effective as of such Increased Amount Date; provided that (1) the representations and warranties set forth herein and in the other Credit Documentation shall be true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Commitments (and the Loans made pursuant thereto) shall be secured on a pari passu basis with the Term B Loans, the Revolving Credit Commitments and the Revolving Credit Loans and shall be secured only by the Collateral securing the Obligations; (3) noneither the Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless suchthe Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the Increased Amount Date); (4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and to the making of any Loans pursuant thereto; provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the absence of a Default or Event of Default shall not constitute a condition to the making of such Incremental Commitments; (5) the Incremental Commitments and related Loans made pursuant thereto shall be effected pursuant to one or more amendments (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Parent GuarantorsGuarantor, the Borrower, each Incremental Lender and each Additional Lender providing such New Term Loan Commitments, Additional Revolving Lender Credit Commitments or Revolving Credit Commitment Increase, as applicable (each of which shall be recorded in the Register and shall be subject to the approval of requirements set forth in Section 5.4(d)), and the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, Agent; and (ii6) each the Borrower shall make any payments required pursuant to Section 2.12 in connection with the Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, . Any New Term Loans made on an Increased Amount Date that have terms and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder provisions that differ from Term Loans outstanding on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments New Term Loans are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments made shall be requested on designated as a single Increased Amount Date, and (y) the terms separate Class of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment Term Loans for all purposes of such Incremental Revolving Lenderthis Agreement. Each of the parties hereto hereby agrees that each Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.17.
(c) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (i) the Maturity Date of any New Term Loans shall not be earlier than the then-existing Latest Maturity Date with respect to any Existing Class of Term Loans, (ii) any New Term Loans shall not have a shorter Weighted Average Life than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (iii) if the Initial Yield on any New Term Loans exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans and (iv) any New Term Loans shall otherwise have the same terms and conditions of the Term Loans then in effect or such other terms and conditions reasonably satisfactory to the Administrative Agent. On any Increased Amount Date on which any New Term Loan Commitments of any Class are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Class, and (ii) each New Term Loan Lender of any Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto.
(d) Notwithstanding the foregoing, without the prior written consent of the Required Lenders or the Required Revolving Credit Lenders, (A) any Revolving Credit Commitment Increase shall be on the exact same terms (including with respect to commitment reductions and interest rates) as the Revolving Credit Commitments, except for such differences (including with respect to maturity date) that are expressly permitted by the following subclause (B), and (B) (i) the Maturity Date of any Additional Revolving Credit Commitments shall not be earlier than, and shall not require mandatory commitment reduction (except ratably with the Revolving Credit Commitments) prior to, the then-existing Latest Maturity Date with respect to the latest maturing Existing Class of Revolving Credit Loans, (ii) if the Initial Yield on any Additional Revolving Credit Commitments (and related Revolving Credit Loans) that expire on or before the one-year anniversary of the Latest Maturity Date with respect to the latest maturing Existing Class (or Classes) of Revolving Credit Commitments (and, in each case, any related Revolving Credit Loans) (such expiration of Additional Revolving Credit Commitments determined without giving effect to contingencies that would cause such expiration to be earlier than otherwise stated unless and until such contingency occurs), exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) by more than 50 basis points, then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) shall automatically be increased by the Yield Differential, effective upon the effectiveness of such Additional Revolving Credit Commitments, (iii) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Revolving Credit Loans under any Incremental Assumption Agreement, this Agreement Additional Revolving Credit Commitments shall be deemed amended made on a pro rata basis with any borrowings and repayments of the Revolving Credit Loans then in effect (the mechanics for which may be implemented through the applicable Incremental Amendment and may include technical changes related to the extent borrowing and repayment procedures of the Revolving Credit Loans then in effect) and (but only iv) any Additional Revolving Credit Commitments shall otherwise have the same terms and conditions of the Revolving Credit Commitments then in effect or such other terms and conditions reasonably satisfactory to the extentAdministrative Agent, including, for the avoidance of doubt any “MFN” protection applicable to such Additional Revolving Credit Commitments.
(e) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount Each of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by parties hereto hereby agrees that the Administrative Agent may, with the Borrowers’ consent of the Borrower (not to be unreasonably withheld) ), take any and furnished all action as may be reasonably necessary to ensure that all New Term Loans that, pursuant to the applicable Incremental Amendment, are to be of the same Class of an Existing Class of Term Loans, when originally made, are included in each Borrowing of such Existing Class of Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Term Loans to be converted into a Borrowing of Term Loans that are ABR Loans on the date the applicable New Term Loan is made, or by allocating a portion of each such New Term Loan to each outstanding Borrowing of LIBOR Term Loans on a pro rata basis. Any conversion of Borrowing of LIBOR Term Loans to Term Loans that are ABR Loans required by the preceding sentence shall be subject to Section 2.12. If any New Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Term Loans, then the interest rate thereon for such Interest Period and the other parties heretoeconomic consequences thereof shall be as set forth in the applicable Incremental Amendment. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving extent any New Term Loans are not Other Term Loans, if necessary, the scheduled amortization payments under Section 2.5(b) required to evidence be made after the initial Borrowing under making of such New Term Loans shall be ratably increased by the FILO Subfacility, (x) the addition aggregate principal amount of voting provisions in Section 9.08 that relate solely such New Term Loans and shall be further increased for all Lenders on a pro rata basis to the FILO Subfacilityextent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation.
(f) Upon each Revolving Credit Commitment Increase pursuant to this Section, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of each Revolving Facility Commitments, or FILO Commitments, as the case may be, on Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations portion of the Revolving Lenders Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and cash collateralization each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of CreditCredit such that, but 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 Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any payments costs incurred by any Lender in respect of Bank Products (as defined accordance with Section 2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the U.S. Collateral Agreement or transactions effected pursuant to the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)immediately preceding sentence.
Appears in 1 contract
Incremental Commitments. (a) After At any time prior to the Amendment repayment in full of all Loans and Restatement Effective Datethe termination of all Commitments hereunder, the Borrowers Borrower may, by written notice to the Administrative Agent from time (which the Administrative Agent shall promptly furnish to timeeach Lender), request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from that one or more Incremental Revolving Lenders Persons (which may include any the then-existing Lender) willing Lenders; provided that no Lender shall be obligated to provide such Incremental Revolving Facility Commitments and may elect or decline in its sole discretion to provide Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each establish Incremental Revolving Lender shall Credit Commitments or Incremental Term Loan Commitments under this paragraph (a), it being understood that if such Incremental Commitment is to be subject to the approval of 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 (which approval shall such consent not to be unreasonably withheld) unless such ). The minimum aggregate principal amount of Incremental Revolving Lender is a Lender, and (ii) each Commitments established pursuant to any Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and Amendment shall be on $10,000,000 (or such lesser amount as may be agreed by the same terms as Administrative Agent). In no event shall the existing U.S. Revolving Facility aggregate amount of any Incremental Commitments established at any time pursuant to this clause (a) exceed the Maximum Incremental Amount at such time. Incremental Commitments shall be established pursuant to an amendment, supplement or Canadian Revolving Facility Commitmentsamendment and restatement (an “Incremental Amendment”) to this Agreement and, as applicableappropriate, the other Loan 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 necessary or appropriate, in all respects shall become a part the reasonable opinion of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) Borrower and the Commitment Fee applicable Administrative Agent, to (x) effect the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased provisions of this Section 2.17 or (but in no event decreasedy) 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 cause any achieve fungibility. Notwithstanding the foregoing, no Incremental Revolving Facility Credit Commitments to comply with or Incremental Term Loans shall become effective under this clause (ii); and provided further, that Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) up to $250 million the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO CommitmentsBorrower that, subject to the requirements of clause proviso set forth below, the conditions set forth in clauses (ba) and (c) of this Section 2.21 4.02 shall have been satisfied and (ii) the Incremental Revolving Facility Commitments may be in Administrative Agent shall have received documents from the form Incremental European Revolving Commitments, subject Borrower substantially consistent with those delivered on the Effective Date as to the requirements 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 (ci) of this Section 2.21; provided furthersentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, that no Event of Default or Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (2) as of the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) the amount of the Incremental Revolving Facility Commitments being requested Section 7.01 is in existence immediately before or immediately after giving effect (which shall be in minimum increments including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount)proceeds thereof, (ii3) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, representations and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be 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 noticeAcquisition-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 applicablequalified by materiality) immediately prior to, and shall be as agreed by the relevant Incremental Revolving Lendersimmediately after giving effect to, the Borrowers, and the Administrative Agent)incurrence of such Acquisition-Related Incremental Commitment.
(b) The Borrowers Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment Commitments of such Incremental Term Loan Lender and/or Incremental Revolving Lender. Each Incremental Amendment shall specify the terms of the parties applicable Incremental Term Loans and/or Incremental Revolving Credit Commitments; provided that:
(i) any commitments to make Incremental Term Loans in the form of 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, (x) 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 (ii) through (vi) below,
(ii) the Other Incremental Term Loans and Incremental Revolving 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 shall be no earlier than the Maturity Date applicable to Initial Term B Loans, and, except as to pricing, amortization and final maturity date (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 B Loans or otherwise permitted under this Section 2.17(b), that are (x) not more favorable, taken as a whole, to the Lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans or (y) otherwise reasonably acceptable 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 the Initial Term B Loans,
(v) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Credit Commitments,
(vi) Other Incremental Term Loans and Incremental Revolving Credit Commitments shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral,
(vii) the interest rate margins, fees and (subject to clauses (iii) and (iv) above with respect to Other Incremental Term Loans) amortization schedule applicable to the Loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders or Incremental Term Loan Lenders; provided that 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 Applicable Margins for the Initial Term B 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 B Loans is equal to the All-in Yield for such Incremental Term Loans minus 50 basis points, and
(viii) to the extent agreed to by the relevant Lenders and the Borrower, any Incremental Amendment with respect to Incremental Revolving Commitments may (i) include customary provisions with respect to swingline loans and letters of credit to be issued pursuant to such Incremental Revolving Commitments (and customary provisions with respect to Defaulting Lenders) and/or (ii) include one or more financial maintenance covenants that are solely for the benefit of the Lenders with such Incremental Revolving Commitments and that may be amended or waived in any manner solely by Lenders with a percentage of such Incremental Revolving Commitments specified in such Incremental Amendment and a breach of which would allow such Lenders to terminate such a percentage of such Incremental Revolving Commitments specified in such Incremental Amendment to terminate such Incremental Revolving Commitments and declare all amounts owing thereunder to be immediately due and payable (and any such breach of such financial maintenance covenants shall not constitute an Event of Default for purposes of any Term Loans unless and until such Incremental Revolving Commitments were 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 that, upon the effectiveness of any Incremental Assumption AgreementAmendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Commitments evidenced thereby, except as required by . Any amendment to this Agreement or any other Loan Document that is necessary to effect the last sentence provisions of this clause (b) and as required by clause (c)Section 2.17 shall be deemed “Loan Documents” hereunder. Any such deemed amendment may be memorialized in writing by Each of the parties hereto hereby agrees that the Administrative Agent with the Borrowers’ consent (not may take any and all action as may be reasonably necessary to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to ensure that (i) this Agreementall Incremental Term Loans (other than Other Incremental Term Loans), incorporating when originally made, are included in each Borrowing of the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, Initial Term B Loans on a standalone pro rata basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Loans in respect of Bank Products (as defined Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the U.S. Collateral Agreement applicable Class of outstanding Revolving Loans on 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 Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)contrary. Section 2.18. [Reserved].
Appears in 1 contract
Sources: Credit Agreement (Integrated Device Technology Inc)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower Agent may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments Commitments, as applicable, with respect to any Borrowers in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower Agent, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition 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 Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) 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(g) and the Issuing Banks (which approval approvals shall not be unreasonably withheld) withheld or delayed), in each case, unless such Incremental Revolving Facility Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable Lender prior to the existing Revolving Facility Commitments that is being increased by establishment of such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. 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 million 5,000,000 and a minimum aggregate amount of $25 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective (the “Increased Amount Date”)effective, (iviii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be (x) commitments to make additional Revolving Facility Commitments Loans on the same terms as the Initial Revolving Loans or Canadian (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Facility Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, and (v) whether such Incremental Revolving Facility Term Loan Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments shall be requested commitments to make term loans on a single Increased Amount Date, and the same terms as the 2024 Refinancing Term B Loans or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such noticemandatory prepayments and/or other terms different from (x) at all times on and prior to the First Amendment Effective Date (before giving effect thereto), if applicableTerm B Loans, (y) at all times on and shall be as agreed by after the relevant Incremental Revolving LendersFirst Amendment Effective Date (after giving effect thereto) and prior to the Second Amendment Effective Date, the Borrowers2023 Refinancing Term B Loans and (z) at all times on and after the Second Amendment Effective Date (after giving effect thereto), and the Administrative Agent2024 Refinancing Term B Loans (such term loans at any given time, “Other Term Loans”).
(b) The Borrowers Borrower Agent and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional 2024 Refinancing Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the 2024 Refinancing Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower Agent, junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term Facility Maturity Date applicable to the 2024 Refinancing Term B Loans and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower Agent and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the 2024 Refinancing Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the 2024 Refinancing Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower Agent, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower Agent and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the 2024 Refinancing Term B Loans on the Second Amendment Effective Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such 2024 Refinancing Term B Loans on the Second Amendment Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such 2024 Refinancing Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “Term SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “Term SOFR floor” applicable to the outstanding 2024 Refinancing Term B Loans shall be increased to an amount not to exceed the “Term SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such 2024 Refinancing Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (B) has a maturity date that is at least two (2) years after the Term Facility Maturity Date applicable to the 2024 Refinancing Term B Loans (this clause (vii), the “MFN Provision”);
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Revolving Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, on a junior basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Term Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans, on a junior basis) than the 2024 Refinancing Term B Loans in any mandatory prepayment hereunder; and
(A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and, the Borrowers’ consent (not to be unreasonably withheld) Borrower Agent and any other applicable Borrower and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the Borrowers conditions set forth in clause (c) of Section 4.01 shall be satisfied and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower Agent and (B) (I) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other similar permitted Investment, no Event of Default under Section 7.01(b), (c), (h) or (i) this Agreementshall have occurred and be continuing or would result therefrom or (II) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for any other purpose, incorporating no Default or Event of Default shall have occurred or be continuing or would result therefrom and (ii) the FILO Subfacility on Administrative Agent shall have received customary terms as are reasonably acceptable legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments or supplements to the Collateral Documents, as applicable, and modification endorsements, which, in the case of such amendments or supplements and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents or hereunder) 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 Liens on the Collateral ratably with (w) reallocations of outstanding Revolving Loans, if necessaryor, to evidence the initial Borrowing under extent set forth in the FILO Subfacilityapplicable Incremental Assumption Agreement, (xjunior to) the addition one or more Classes of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of then-existing Term Loans and Revolving Facility CommitmentsLoans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), or FILO Commitmentswhen originally made, as are included in each Borrowing of the case may be, outstanding applicable Class of Term Loans on a standalone pro rata basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Facility Loans in respect of Bank Products Incremental Revolving Facility Commitments (as defined 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 Borrowers agrees that Section 2.16 shall apply to any conversion of SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the 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 this Section 2.21), pursuant to one or more offers made from time to time by the Borrower Agent to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the U.S. Collateral Agreement or case of an offer to the Canadian Collateral AgreementLenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (other than Noticed Bank Products“Pro Rata Extension Offers”)., the Borrower Agent is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower Agent and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Lo
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective DateThe Borrower may, the Borrowers mayfrom time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount Term Loan Commitments, first, from one or more Incremental Revolving Lenders (which may include any existing Lenderin the sole discretion of such Lenders) willing to provide such Incremental Revolving Facility Commitmentsor second, as the case may befrom Eligible Assignees who will become Lenders, in their own discretion; provided, that (i) each an aggregate principal amount for all Incremental Revolving Lender shall be subject Commitments not to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million15,000,000. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 million 100,000 and a minimum amount of $25 million or equal to the remaining Incremental Amount1,000,000), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective and (the “Increased Amount Date”), (iviii) whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility are to be Term Loan Commitments or Canadian Revolving Facility Commitments, and commitments to make term loans with terms different from the Term Loans (v) whether such “Other Term Loans”). All Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments Term Loans shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth made in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)Dollars.
(b) The Borrowers Borrower and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Term Loan Commitment of such Lender. Subject to clause (c) below, each Incremental Revolving LenderAssumption Agreement shall specify the terms of the Incremental Term 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 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 increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except as thereby and any increase to the Applicable Margins required by the last sentence foregoing provisions of this clause (b) and as required by clause (c)paragraph. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheldwithheld or delayed) and furnished to the other parties hereto.
(c) The terms of each Incremental Term Loan shall be as follows:
(i) any Incremental Term 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 Person other than the Credit Parties;
(ii) such Incremental Term Loan shall not mature earlier than the Maturity Date;
(iii) such Incremental Term Loan shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then existing Term Loans;
(iv) such Incremental Term Loans, subject to clauses (ii) and (iii) above, shall have amortization determined by the Borrower and the applicable Incremental Term Lenders;
(v) after giving effect to such Incremental Term Loans, (A) no Default or Event of Default shall 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 Loans, subject to clause (viii) below, shall have an Applicable Margin determined by the Borrower and the 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 the initial Term Loans incurred hereunder, as specified in the applicable Incremental Assumption Agreement; and
(viii) without the prior written consent of the Lenders, for any Incremental Term Loans made on or prior to the date that is eighteen (18) 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 paragraphs (a) and (b) of Section 4.2 shall be satisfied as if it were a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower; and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders) closing certificates, opinions of counsel and other customary documentation reasonably requested by the Administrative Agent.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding LIBOR Rate 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 LIBOR Rate 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 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 Borrower regarding the foregoing and, to the extent practicable, will use commercially reasonable efforts to pursue options that minimize breakage costs). In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.2(b)(i) required to (i) this Agreement, incorporating be made after the FILO Subfacility on customary terms as are reasonably acceptable making of such Incremental Term Loans shall be ratably increased in proportion to the Administrative Agent, including aggregate principal amount of such Incremental Term Loans.
(wf) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting This Section 2.22 shall supersede any provisions in Section 9.08 that relate solely 2.11(b), 9.1 or 9.7(b) to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)contrary.
Appears in 1 contract
Sources: Credit Agreement (Fluent, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers mayThe Borrower may on one or more occasions, by written notice to the Administrative Agent from time (which shall promptly deliver a copy thereof to timeeach Lender), request the establishment of Incremental Revolving Facility Commitments in an Commitments, provided that the aggregate amount not to exceed of all the Incremental Amount from one or more Incremental Revolving Lenders Commitments established after the Restatement Effective Date under this Section 2.20 shall not exceed $20,000,000 (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitmentsit being understood, as for the case may be, in their own discretion; providedavoidance of doubt, that the additional Commitments established on the Restatement Effective Date are not Incremental Commitments and the Second Restatement Agreement is not an Incremental Facility Agreement). Each such notice shall specify (i) each the date on which the Borrower proposes that the Incremental Revolving Lender Commitments shall be subject effective, which shall be a date not less than 15 days after the date on which such notice is delivered to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a LenderAgent, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested, and shall offer to each Non-Defaulting Lender the opportunity to provide a portion of the amount of the Incremental Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to its Applicable Percentage (calculated disregarding the remaining Incremental Amount)Commitments of Defaulting Lenders, (iiif any) thereof. Each Lender shall, by notice to the aggregate amount of Incremental Revolving Facility Commitments, which shall Borrower and the Administrative Agent given not exceed the Incremental Amount, (iii) more than seven days after the date on which the Administrative Agent shall have delivered the Borrower’s notice, either agree to provide all or a portion of its Applicable Percentage (as so calculated) of the amount of the Incremental Commitments being requested or decline to do so (and any Lender that does not deliver such notice within such period of seven days shall be deemed to have declined to do so). If, on the seventh day after the Administrative Agent shall have delivered the Borrower’s notice, the Lenders shall have agreed pursuant to the preceding sentence to provide Incremental Revolving Facility Commitments are requested in an aggregate amount less than the amount of the Incremental Commitments being requested, the Borrower may arrange for one or more banks or other financial institutions, which may include any Lender, to provide Incremental Commitments in an aggregate amount equal to the amount of such deficiency; provided that any Person that the Borrower proposes to become effective (the “Increased Amount Date”), (iv) whether such an Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such noticeLender, if applicablesuch Person is not then a Lender, must be an Eligible Assignee and shall must be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and reasonably acceptable to the Administrative Agent)Agent and each Issuing Bank.
(b) The Borrowers terms and conditions 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, it being agreed, however, that in connection with the effectiveness of any Incremental Commitment, subject to the consent of the Borrower, this Agreement may be modified to increase (but not decrease) the Applicable Rate and fees payable for the account of the Lenders pursuant to Section 2.11, so long as such increase is effective for the benefit of all the Lenders hereunder on equal terms.
(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 Commitments and the Administrative Agent; provided that no Incremental Commitments shall execute become effective unless (i) no Default or Event of Default shall have occurred and deliver be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) the Borrower shall have delivered to the Administrative Agent an a certificate of the chief executive officer or the chief financial officer of the Borrower, dated as of the date of effectiveness thereof, certifying that the representations and warranties of each Loan Party set forth in the Loan Documents are 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, in each case on and as of such date, 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 have been so true and correct on and as of such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Assumption Agreement Commitments and such other documentation as the related transactions under this Section 2.20 and (iv) 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 specify 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 evidence this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section (including any increase referred to in paragraph (b) above).
(d) Upon the effectiveness of an Incremental Revolving Facility Commitment of any Incremental Lender, (i) such Incremental Lender, if not already a 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, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Revolving Lender. Each 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 parties hereto hereby agrees that term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Assumption AgreementCommitment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount Exposure of the Incremental Revolving Facility Commitments evidenced therebyLender holding such Commitment, except 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, each Lender shall assign to each Incremental Lender holding such Incremental Commitment, and each such Incremental Lender shall purchase from each Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and participations in Letters of Credit and Protective Advances outstanding on such date as required shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit and Protective Advances will be held by all the last sentence Lenders (including such Incremental Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of this clause (b) and as required by clause (c)such Incremental Commitment. Any such deemed amendment may be memorialized in writing by the The Administrative Agent with shall notify the Borrowers’ consent (not Lenders promptly of the effectiveness of any Incremental Commitments, advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be unreasonably withheld) and furnished made pursuant to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)paragraph.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Loan Amount from one or more Incremental Revolving Lenders (Lenders, which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, provided that (i) each Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in the case of any increase in Tranche A Revolving Credit Commitments, the Issuing Bank and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments withheld or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (iidelayed); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which which, unless otherwise agreed to by the Administrative Agent, shall be in minimum increments integral multiples of $5 million 1,000,000 and a minimum amount of $25 million 5,000,000 or in an amount equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (which shall not be less than five Business Days after the “Increased Amount Date”), date of such notice) and (iviii) whether such Incremental Commitments are to be Tranche A Revolving Facility Commitments will constitute U.S. Credit Commitments, Tranche B Revolving Facility Credit Commitments or Canadian Revolving Facility Incremental Term Commitments. For the avoidance of doubt, and (v) whether such no Lender shall have any obligation to assume an Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)Commitment.
(b) The Borrowers Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Lender. Each such agreement shall specify the terms of the Incremental Commitments to be made thereunder; provided, however, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Maturity Date and (ii) if the initial yield on any Incremental Term Loans (as determined by the Administrative Agent to be equal to the sum of (A) the margin over the Adjusted LIBO Rate (including as margin the effect of any “LIBOR floor”) applicable to the Incremental Term Loans and (B) if the Incremental 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 Incremental Term Loans) from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental 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 Incremental Term Loans and (B) four) exceeds (the amount of such excess being referred to herein as the “Yield Differential”) the Applicable Percentage (plus the effect of the “LIBOR floor” contained in clause (a) of the definition of the term “Adjusted LIBO Rate”) for Eurodollar Loans hereunder, then the Applicable Percentages for the Loans hereunder shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans. The other economic terms of any Incremental Term Loans (including the scheduled amortization and the mandatory and optional prepayment provisions thereof) shall be as agreed to by the Borrower and the Incremental Lenders, subject to the prior written approval of the Administrative Agent, and shall be set forth in the Incremental Assumption Agreement. Without the prior written consent of the Required Lenders, any Incremental Commitments consisting of Revolving LenderCredit Commitments of a Class shall be identical in all respects to the then-existing Revolving Credit Commitments of such Class; provided, however, that (x) the Applicable Percentages, “LIBOR floor” and Commitment Fees with respect to all Revolving Credit Commitments may be increased concurrently with the effectiveness of any Incremental Commitment and (y) if the Incremental Lenders assuming such Revolving Credit Commitment receive an “upfront” fee (as opposed to an “arrangement” or similar fee paid solely to the arranger or arrangers of such Incremental Commitment) from the Borrower or any Subsidiary for doing so, then the Borrower or such Subsidiary shall pay the same “upfront” or similar fee (in each case, as a percentage of the applicable Revolving Credit Commitments) to the then-existing Revolving Credit Lenders in respect of their then-existing Revolving Credit Commitments concurrently with the effectiveness of such Incremental Commitment. 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 that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Commitments Commitment evidenced therebythereby and any increase to the Applicable Percentages, except as “LIBOR floor” or Commitment Fee required by the last sentence foregoing provisions of this clause (b) and as required by clause (cSection 2.23(b). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheldwithheld or delayed) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.23 unless (i) on or before the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and each Incremental Revolving Lender accepting a FILO Commitment (d) of Section 4.01 shall execute be satisfied and deliver to the Administrative Agent an amendment shall have received a certificate to (i) this Agreement, incorporating the FILO Subfacility on customary terms that effect dated as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on such date and executed by a standalone basis, and (z) a prohibition on optional prepayments Financial Officer of the FILO Loans at any time when Revolving LoansBorrower, and (ii) an amendment to Section 5.02(b) the Administrative Agent shall have received (with sufficient copies for each of the U.S. Collateral Agreement or Incremental Lenders) legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date under Section 5.02(b4.02.
(d) Each of the Canadian Collateral Agreement, parties hereto hereby agrees that the Administrative Agent may take any and all action as applicable, executed by the Collateral Agent (as defined therein) in order may be reasonably necessary to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of ensure that all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Loans in respect of Bank Products (as defined Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.15 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the U.S. Collateral Agreement or Administrative Agent to effect the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)foregoing.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments Term Loan Commitments, in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Term Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Term Loans in their own discretion; provided, that (i) each Incremental Revolving Term Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Term Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments an Affiliate of a Lender or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionan Approved Fund. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 5.0 million and a minimum amount of $25 25.0 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of all Incremental Revolving Facility Commitments, which Term Loan Commitments shall not exceed the Incremental Amount$125,000,000, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iv) whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility are to be Term C Loan Commitments or Canadian Revolving Facility Commitments, and commitments to make term loans with pricing and/or amortization terms different from the Term C Loans (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Term Loan Commitment of such Incremental Revolving Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans (all such Incremental Term Loans to be made pursuant to any Incremental Assumption Agreement, a “Series”); provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term C Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term C Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term Facility Maturity Date, and (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term C Loans. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, Agreement this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and each Incremental Revolving Lender accepting a FILO Commitment (c) of Section 4.01 shall execute be satisfied and deliver to the Administrative Agent an amendment shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (iii) this Agreementthe Administrative Agent shall have received legal opinions, incorporating board resolutions and other closing certificates and documentation as required by the FILO Subfacility on customary terms as are reasonably acceptable relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Effective Date under Section 4.02 and such additional 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 (w) reallocations of outstanding Revolving Loans, if necessaryor, to evidence the initial Borrowing under extent agreed by the FILO Subfacilityapplicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, (xjunior to) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving existing Term Loans, and (iiiii) an amendment the Borrower shall be in Pro Forma Compliance after giving effect to Section 5.02(b) such Incremental Term Loan Commitment and the Loans to be made thereunder and the application of the U.S. Collateral Agreement or Section 5.02(bproceeds therefrom as if made and applied on such date.
(d) Each of the Canadian Collateral Agreement, parties hereto hereby agrees that the Administrative Agent may take any and all action as applicable, executed by the Collateral Agent (as defined therein) in order may be reasonably necessary to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of ensure that all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) Incremental Term Loans (other than Noticed Bank Products)Other Term Loans) in the form of additional Term C Loans, when originally made, are included in each Borrowing of outstanding Term C Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Covalence Specialty Adhesives LLC)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Company may, by written notice to the Administrative Agent from time to timetime but not more than twice in any calendar year, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Advances in their own sole discretion; provided, that (i) each Incremental Revolving Lender (which is not an existing Lender) shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million9.07. Such notice shall set forth (iA) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments multiples of $5 million and a minimum amount of $25 million or equal to the remaining Incremental AmountUS$10,000,000), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iiiB) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (ivC) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility are to be Tranche A Commitments, Tranche B Commitments or Canadian commitments to make revolving advances with currency, borrowers and/or amortization terms different from the existing Facilities (“Other Revolving Facility Commitments, and (v) whether such Incremental Credit Advances”). The designation of Commitments to any Other Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments Credit Advances shall be requested on a single Increased Amount Datemade pursuant to an amendment (each, an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Company, the Agent and (y) the terms of such FILO Commitments, including pricing, each applicable Incremental Lender. No Lender shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)obligated to increase its Commitments pursuant to this Section 2.19 unless it so agrees.
(b) The Borrowers Company and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an agreement in form and substance reasonably satisfactory to the Agent (each, an “Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify Agreement”) to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Advances to be made thereunder, and the Incremental Advances thereunder shall be made on terms and conditions agreed to by the Company and the applicable Incremental Lenders, and acceptable to the Agent; provided, that (i) the Other Revolving Facility Advances shall rank pari passu in right of payment with all other Advances, (ii) the final maturity date of any Incremental Facility shall be no earlier than the scheduled Termination Date applicable to the Tranche A Facility and the Tranche B Facility (under clause (a)(i) of the definition of “Termination Date”), (iii) the Incremental Facility shall require no scheduled amortization or mandatory commitment reductions prior to the scheduled Termination Date applicable to the Tranche A Facility and the Tranche B Facility (under clause (a)(i) of the definition of “Termination Date”), (iv) in the event that (A) (1) any Incremental Facility is to be included in an existing Facility and (2) the Applicable Margin for such Incremental Facility is greater than the Applicable Margin for the existing Facility in which such Incremental Facility is to be included, then the Applicable Margin for the existing Facility in which such Incremental Facility is to be included shall be increased to the extent necessary so that the Applicable Margin for the Incremental Facility is not greater than the Applicable Margin for such Facility or (B)(1) any Incremental Facility provides for Advances to be denominated in US Dollars, Euro or Sterling and (2) the Applicable Margin for such Incremental Facility with respect to Advances denominated in US Dollars, Euro or Sterling is greater than the Applicable Margin for any existing Facility with respect to Advances denominated in US Dollars, Euro or Sterling, then the Applicable Margin for each existing Facility with respect to Advances denominated in US Dollars, Euro or Sterling shall be increased to the extent necessary so that the Applicable Margin for such Incremental Facility for Advances denominated in US Dollars, Euro or Sterling is not greater than the Applicable Margin for any such existing Facility for Advances denominated in US Dollars, Euro or Sterling; provided further, that in determining the Applicable Margin applicable to an Incremental Facility (x) upfront, arrangement or commitment fees payable to the Lenders providing such Incremental Facility or any arrangers (or their Affiliates) of such loans shall be excluded and (y) if any Eurocurrency Rate “floor” is applicable to such Incremental Facility, then the definition of “Eurocurrency Rate” shall be amended to (aa) include a comparable “floor” applicable to Advances under the existing Facility in which such Incremental Facility is to be included and (bb) include a comparable “floor” applicable to Advances denominated in US Dollars, Euro or Sterling under any other existing Facility. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness (unless otherwise agreed among the Incremental Lenders, the Company and the applicable Borrowers, and consented to by the Agent (such consent not to be unreasonably withheld or delayed)) (A) the representations and warranties set forth in Article IV are correct in all material respects (except those representations and warranties qualified by materiality, which shall be true and correct) on and as of such date, as though made on and as of such date, except to the extent that any such representation or warranty expressly relates only to an earlier date, in which case it was correct in all material respects (except those representations and warranties qualified by materiality, which shall be true and correct) as of such earlier date and the Agent (acting at the direction of the applicable Incremental Lenders) shall have received a certificate to that effect dated such date and executed by the Company and (B) no Event of Default or Potential Event of Default shall have occurred and be continuing or would result from such Incremental Commitment, (ii) the Agent shall have received such legal opinions, board resolutions and other closing certificates and documentation (including opinions of counsel) as the Agent (acting at the direction of the applicable Incremental Lenders) shall reasonably request and (iii) the Incremental Commitment of each Incremental Lender that was not, prior to the applicable Increased Amount Date, a Lender hereunder shall not be less than US$5,000,000.
(d) Each of the parties hereto hereby agrees that upon the effectiveness of Agent may take any Incremental Assumption Agreement, this Agreement shall and all action as may be deemed amended to the extent (but only to the extent) reasonably necessary to increase ensure that all Incremental Advances (other than Other 49 Revolving Credit Advances), when originally made, are included in each Borrowing of outstanding Advances under the U.S. Revolving Tranche A Facility or the Canadian Revolving Tranche B Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by on a pro rata basis.
(e) Notwithstanding the Collateral Agent (terms of Section 9.01, any Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as defined therein) may be necessary or appropriate, in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations reasonable opinion of the Revolving Lenders Agent and cash collateralization the Company, to implement the provisions of outstanding Letters this Section, a copy of Credit, but prior which shall be made available to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)each Lender.
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Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers mayThe Company 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 Commitments; provided that the aggregate, cumulative amount of all Incremental Commitments established pursuant to this Section 2.21 after the Effective Date shall not exceed $50,000,000. Each such notice shall specify (i) the date on which the Company proposes that the Incremental Commitments shall be effective, which shall be 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 notice is delivered to the Administrative Agent, (B) the amount of the Incremental Commitments being requested, (C) the identity of each Lender or other Person that the Company proposes become an Incremental Revolving Facility Commitments in an Lender with respect thereto, together with the proposed aggregate amount not to exceed of the Incremental Amount from one Commitment for each such Lender or more other Person (it being agreed that (x) any Lender approached to provide any Incremental Revolving Lenders (which Commitment may include any existing Lender) willing 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 Facility Loans and other extensions of credit to be made thereunder shall be identical to the terms and conditions of the Commitments and Revolving Loans and other extensions of credit made thereunder; provided that if the interest rate spread applicable to Revolving Loans to be made under any Incremental 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 effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each applicable Borrower, each Incremental Revolving Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Revolving Loans and other extensions of credit thereunder to be made on such date, (ii) 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 Section 6.12 and Section 6.13 on a pro forma basis in accordance with Section 1.04(b), (iv) the Company shall make any payments required to be made 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), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such 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 Revolving Lenders) ratably in accordance with their own discretionApplicable 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 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 the effectiveness of such Incremental Commitments shall either be prepaid on such date or refinanced on such date (subject to the satisfaction of applicable borrowing conditions) with Revolving Loans made on such 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 shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased will make ABR Loans by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver transferring funds to the Administrative Agent in an Incremental Assumption Agreement and amount equal to the aggregate outstanding amount of such other documentation as Loans of such Type times a percentage obtained by dividing the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment amount of such Incremental Revolving Lender. Each 's Incremental Commitment by the Aggregate Commitment (after giving effect to the effectiveness of the parties hereto Incremental Commitments on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR Loans held by the Revolving Lenders other than the Incremental Revolving Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Incremental Revolving Lenders, in such amounts so that, after giving effect thereto, all ABR Loans will be held by the Revolving Lenders in accordance with their then-current Applicable Percentages. On the 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 the Revolving Loans of such Borrower being prepaid. The Administrative Agent and the Lenders hereby agrees 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 and of the effectiveness of any Incremental Assumption AgreementCommitments, this Agreement shall be deemed amended to in each case advising the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount Lenders of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) details thereof and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations Applicable Percentages of the Revolving Lenders after giving effect thereto and cash collateralization of outstanding Letters of Credit, but prior the assignments deemed to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Productshave been made pursuant to Section 2.21(e).
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Incremental Commitments. (a) After Each Incremental Lender, effective upon the Amendment and Restatement Incremental Facility Effective Date, the Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, hereby agrees that (i) in respect of each Incremental Revolving Lender that is a Lender immediately prior to the Incremental Facility Effective Date, such Lender's Commitment in effect immediately prior to the Incremental Facility Effective Date shall be subject increased by the amount set forth next to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, 's name on Schedule I hereto and (ii) in respect of each Incremental Revolving Lender that is not a Lender immediately prior to the Incremental Facility Effective Date (each, an “Augmenting Lender”), such Augmenting Lender's Commitment shall increase either be the U.S. Revolving Facility amount set forth next to such Augmenting Lender's name on Schedule I hereto. All such Incremental Commitments or the Canadian Revolving Facility Commitments shall constitute “Commitments” and all Incremental Lenders shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitmentsconstitute “Lenders”, as applicable, and in each case for all respects shall become a part purposes of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) Credit Agreement and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause other Loan Documents.
(b) of this Section 2.21 From and (ii) after the Incremental Revolving Facility Commitments may Effective Date, each Augmenting Lender shall be in a party to the form Incremental European Revolving CommitmentsCredit Agreement, entitled to all rights, powers and privileges, and subject to the requirements all obligations, of clause (c) of this Section 2.21; provided furthera Lender thereunder, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth including without limitation (i) the amount right to receive all payments made by the Borrowers in respect of the Loans made by such Augmenting Lender, whether on account of principal, interest, fees, indemnities in respect of claims arising after the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million Effective Date, increased costs, additional amounts or equal to the remaining Incremental Amount)otherwise, (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed right to vote and to instruct the Incremental AmountAdministrative Agent under the Credit Agreement according to its Applicable Percentage, (iii) the date on which right to set‑off and to appropriate and apply deposits of the Borrowers as set forth in the Credit Agreement and (iv) the right to receive notices, requests, demands and other communications.
(c) Each Augmenting Lender (i) confirms that it has received a copy of each Loan Document (other than the Fee Letter), together with copies of the most recent financial statements delivered by El Paso pursuant to Sections 5.04(a) and (b) of the Credit Agreement and such Incremental Revolving Facility Commitments are requested other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assumption Agreement and to become effective a Lender under the Credit Agreement, (ii) agrees that it will, independently and without reliance upon the “Increased Amount Date”)Administrative Agent, the Syndication Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (iv) whether such Incremental Revolving Facility Commitments agrees that it will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitmentsperform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender, and (v) whether represents and warrants to the Administrative Agent that it has duly executed and delivered this Assumption Agreement and that the execution, delivery and performance by such Incremental Revolving Facility Commitments will constitute FILO Commitments Augmenting Lender of this Assumption Agreement have been duly authorized by all necessary action (it being understood that (xcorporate or otherwise) all FILO Commitments shall be requested on a single Increased Amount Date, and (yvi) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and agrees that it will deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as Administrative Questionnaire in the Administrative Agent shall reasonably specify form of Exhibit A to evidence the Incremental Revolving Facility Credit Agreement.
(d) In order to effectuate the increase in the Total Commitment of such Incremental Revolving Lender. Each contemplated hereby, each of the parties hereto hereby agrees that upon that, on the effectiveness Incremental Facility Effective Date, each Incremental Lender shall purchase by assignment from the other Lenders (and such other Lenders shall assign to the Incremental Lenders) such portion of the outstanding Loans (including, without limitation, any Incremental Assumption Loans deemed made pursuant to Section 2.02(f) of the Credit Agreement), this Agreement if any, owing to them as shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, designated by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of such that, after giving effect to all such purchases and assignments, the outstanding Revolving Loans, if necessary, Loans owing to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments each Lender shall equal such Lender's Applicable Percentage of the FILO aggregate amount of Loans at any time when Revolving Loans, and owing to all Lenders. Any prepayment described in this paragraph (iid) an amendment shall be subject to Section 5.02(b2.14 of the Credit Agreement, but shall otherwise be without premium or penalty. In connection with this Assumption Agreement, the Administrative Agent hereby waives the processing and recordation fee of $3,500 otherwise required to be paid pursuant to Section 10.04(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Credit Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
Appears in 1 contract
Sources: Incremental Facility Assumption Agreement (El Paso Electric Co /Tx/)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; providedprovided that in the case of Incremental Revolving Commitments either, that at the election of the Borrowers, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including Administrative Agent shall withhold approval if any of the Pricing Grid) and the Commitment Fee applicable L/C Issuers object to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreasedLender) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and or (ii) the Letter of Credit Commitment may not be allocated under, and no Letters of Credit may be requested by the Borrowers under, such Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. 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 5.0 million and a minimum amount of $25 20.0 million or equal to the remaining Incremental AmountAmount or in each case such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with terms identical to Term B Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be commitments to make additional Revolving Facility Commitments Loans on the same terms as the Initial Revolving Loans or Canadian commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Facility Commitments, and Loans (v) whether such Incremental “Other Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentLoans”).
(b) The Borrowers and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that
(i) except as to pricing, amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrowers and their Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B Loans (as determined in good faith by the Borrowers), (x) then-current market terms (as determined in good faith by the Borrowers), (y) in the case of unsecured Other Term Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrowers) or (z) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrowers, junior in right of security with the Term B Loans, or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and shall not be subject to clause (viii) below),
(iii) the final maturity date of any Other Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence,
(iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans (without giving effect to any amortization or prepayments on the Term B Loans or Other Term Loans),
(v) except as to pricing, final maturity date, participation in voluntary and mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) and (vii) of this proviso, be determined by the Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrowers and their Subsidiaries than the terms and conditions, taken as a whole, applicable to the Initial Revolving Loans (as determined in good faith by the Borrowers), (x) then-current market terms (as determined in good faith by the Borrowers), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrowers) or (z) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrowers, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that (w) is incurred prior to the twelve-month anniversary of the Closing Date, (x) has an outside maturity date less than one year after the latest maturity date of the initial Term B Loans, (y) is not incurred in connection with a Permitted Business Acquisition or any other acquisition or Investment that is not prohibited by this Agreement and (z) ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent 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 higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term B Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the Collateral; and
(xi) any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced therebythereby as provided for in Section 9.08(e) (including, except without limitation, any amendment to Section 2.10(a) as required by may be necessary to reflect the last sentence amortization of this clause (b) and as required by clause (cany such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) 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 2.21 unless on the date of 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 be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of a 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 or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrowers) or (i) (with respect to the Borrowers) shall have occurred and be continuing or would result therefrom.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other 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 (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. In additionThe Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section 2.21), pursuant to one or more offers made from time to time by a Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrowers are hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and/or to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing or reducing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrowers and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrowers and each Incremental Revolving Extending Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date, participation in prepayments and commitment reductions and covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing at the time of incurrence of such Extended Term Loan (which shall, subject to clauses (ii) and (iii) of this Agreementproviso, incorporating be determined by the FILO Subfacility on customary terms as are reasonably acceptable Borrowers and set forth in the Pro Rata Extension Offer and shall not be subject to the Administrative Agentprovisions set forth in Section 2.21(b)(viii)), including the Extended Term Loans shall have (w) reallocations terms substantially similar to, or not materially less favorable to the Borrowers and their Subsidiaries than, the terms and conditions, taken as a whole, applicable to the existing Class of outstanding Revolving Loans, if necessary, to evidence Term Loans (as determined in good faith by the initial Borrowing under the FILO SubfacilityBorrowers), (x) the addition of voting provisions then-current market terms (as determined in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed good faith by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).Borr
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Term Loan Commitments in an amount not to exceed 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 Incremental Revolving Term Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Term Loans in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 million 5,000,000 and a minimum amount of $25 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective and (iii) in the “Increased Amount Date”)case of Incremental Term Loan Commitments, (iv) whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments shall be requested on a single Increased Amount Date, and commitments to make term loans with terms identical to Term B Loans or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such notice, if applicable, and shall be as agreed by mandatory prepayments and/or other terms different from the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative AgentTerm B Loans (“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Term Loan Commitment of such Incremental Revolving Term Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Term Loans; provided, that:
(i) any commitments to make additional Term B Loans shall have the same terms as the Term B Loans,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) [reserved],
(vi) [reserved],
(vii) with respect to any Other Term Loan incurred prior to the 12-month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(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 Term B Loans in any mandatory prepayment hereunder; and
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments that is not a Loan Party. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced therebythereby 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’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, except no Incremental Term Loan Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, at time of and immediately after such Borrowing, as applicable, no Event of Default or 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 Responsible Officer of the Borrower and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the last sentence relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (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. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this clause Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans, on a pro rata basis (bbased, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class) and 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 of such Class and to otherwise modify the terms of such Lender’s Loans 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 modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class 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”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as required the Administrative Agent shall reasonably specify to evidence the Extended Term Loans of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans; 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 clause the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (cx) 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), and (v) 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 B 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 evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(g) Upon the effectiveness of any such Extension, the Borrowers applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan. For purposes of this Agreement and each the other Loan Documents, if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Revolving 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 Lender accepting a FILO may extend all or any portion of its Term Loans pursuant to one or more Pro Rata 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 Extension of any Loan or Commitment shall execute and deliver at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan implemented thereby, (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 relating to an amendment to existing Class of Term Loans of the relevant Loan Parties under this Agreement and the other Loan Documents and (vi) there shall be no obligor in respect of any such Extended Term Loans that is not a Loan Party.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided, that the Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in this Agreement, incorporating including Section 2.18(c) (which provisions shall not be applicable to clauses (j) through (o) of this Section 2.21), the FILO Subfacility on customary terms as are reasonably acceptable Borrower may by written notice to the Administrative AgentAgent establish one or more additional tranches of term loans under this Agreement (such loans, including “Refinancing Term Loans”), the net cash proceeds of which are used to Refinance in whole or in part any Class of Term Loans. Each such notice shall specify the date (weach, a “Refinancing Effective Date”) reallocations 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 outstanding Revolving Loanssuch Refinancing Term Loans on the Refinancing Effective Date, if necessary, to evidence each of the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions conditions set forth in Section 9.08 that relate solely 4.01(a) shall be satisfied (with references therein to “Closing Date” being deemed references to the FILO Subfacility, (yapplicable “Refinancing Effective Date”) and no Event of Default or Default shall have occurred and be continuing to the addition of assignment provisions in Section 9.04 allowing for extent required by the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving relevant Incremental Assumption Agreement governing such Refinancing Term Loans, and ;
(ii) an amendment to Section 5.02(b) the final maturity date of the U.S. Collateral Agreement or Section 5.02(b) Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the Canadian Collateral Agreementrefinanced Term 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 Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, as applicablepremiums, executed by the Collateral Agent costs and expenses (as defined thereinincluding original issue discount) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of and accrued interest associated therewith;
(v) all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior terms applicable to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) such Refinancing Term Loans (other than Noticed Bank Productsprovisions relating to original issue discount, upfront fees, interest rates and 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 or redemption terms, 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
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Sources: Second Lien Credit Agreement (Hostess Brands, Inc.)
Incremental Commitments. At any time following the earlier of (ax) After completion of the Amendment syndication of the Revolving Loan Facility (as reasonably determined by the Administrative Agent) and Restatement Effective (y) 90 days after the Closing Date and prior to the Revolving Facility Maturity Date, the Borrowers may, Borrower may by written notice to the Administrative Agent from time elect to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by (any such increase, the “Incremental Revolving Facility Commitments shall automatically be increased (but Commitments”), in no event decreased) an aggregate principal amount, collectively, not to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided furtherexceed U.S. $50,000,000, that (i) up to or, a lesser amount in integral multiples of U.S. $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million5,000,000. Such notice shall set forth specify the date (ian “Increased Amount Date”) on which the amount of Borrower proposes that the Incremental Revolving Facility Commitments being requested (shall be made available, which shall be a date not less than 5 Business Days (or such lesser number of days as may be agreed to by the Administrative Agent in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (iiits sole discretion) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) after the date on which such Incremental notice is delivered to the Administrative Agent. The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender or other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, the Issuing Banks and the Swingline Lenders (each, an “Incremental Lender”) to whom the Incremental Commitments are requested have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective (the “as of such Increased Amount Date”), ; provided that (ivi) whether no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, ; (ii) the representations and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments warranties contained in Article III and the other Loan Documents shall be requested true and correct in all material respects on a single and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date; (yiii) the terms of Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such FILO Incremental Commitments, including pricing, with the covenants contained in Section 6.10 and Section 6.11 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries; (iv) such Incremental Commitments shall be set forth in such noticeevidenced by one or more Incremental Commitment Agreements executed and delivered to Administrative Agent by each Incremental Lender, if as applicable, and each shall be as agreed by recorded in the relevant Incremental Revolving Lendersregister, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender of which shall execute and deliver be reasonably satisfactory to the Administrative Agent an Incremental Assumption Agreement and such other documentation as subject to the Administrative Agent requirements set forth in Section 2.17(e); (v) the Borrower shall reasonably specify make any payments required pursuant to evidence Section 2.16 in connection with the provisions of the Incremental Revolving Facility Commitment of such Commitments; and (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Revolving LenderCommitments. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption AgreementCommitment Agreements as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order and the Borrower may revise this Agreement to provide for evidence such amendments without the payment consent of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)Lender that is not providing such Incremental Commitments.
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Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, Commitments hereunder on such terms; provided that provided, that, the Applicable Margin (including the Pricing Grid) and the Commitment Fee Rate applicable to the then-existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments Commitment to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, and (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving LenderAgreement. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, Commitments by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (c) and each Incremental Revolving Lender accepting a FILO Commitment (d) of Section 4.2 shall execute be satisfied and deliver to the Administrative Agent an amendment shall have received a certificate to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on effect dated such date and executed by a standalone basis, and (z) a prohibition on optional prepayments Responsible Officer of the FILO Loans at any time when Revolving LoansBorrower, and (ii) an amendment the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation to the extent reasonably required by the Administrative Agent, in each case consistent with those delivered on the Closing Date under Section 5.02(b) 4.1 and such additional documents and filings as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed Incremental Commitments are secured by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of ratably with all other Obligations Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Loans in respect of Bank Products (as defined Incremental Commitments, when originally made, are included in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)each Borrowing of outstanding Revolving Loans on a pro rata basis.
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Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers 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 Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition 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 Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Facility Lender 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 approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, Revolving Facility Lender and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and Term Lender shall be on subject to the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part approval of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) Administrative Agent to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may same would be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this required for an assignment under Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million9.04. 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 million 1,000,000 and a minimum amount of $25 million 5,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective (the “Increased Amount Date”)effective, (iviii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be (x) commitments to make additional Revolving Facility Commitments Loans on the same terms as the Initial Revolving Loans or Canadian (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Facility Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, and (v) whether such Incremental Revolving Facility Term Loan Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments shall be requested on commitments to make term loans with terms identical to a single Increased Amount Date, and certain Class of existing Term Loans or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agentmandatory prepayments and/or other terms different from all then-existing Term Loans (“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term Loans and/or additional Initial Revolving Loans of a particular Class shall have the same terms as the Term Loans or Initial Revolving Loans, respectively of the applicable Class,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Liens on the Collateral securing the Initial Facilities,
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term Loan Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term 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 Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Liens on the Collateral securing the Initial Revolving Loans,
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent; provided that Incremental Revolving Facilities shall require no scheduled amortization or mandatory commitment reduction prior to the final maturity of the existing Revolving Facilities,
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21, the All-in Yield shall be the same as that applicable to the Initial Delayed Draw Term Loan Facility, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Initial Delayed Draw Term Loan Facility 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 Initial Delayed Draw Term Loan Facility 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 Initial Delayed Draw Term Loan Facility 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 Initial Delayed Draw Term Loan Facility then outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term Loans in any mandatory prepayment hereunder; and
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrower and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the Borrowers conditions set forth in clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a 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 or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01 (b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title date-down and modification endorsements, which, in the case of such amendments and title date-down and modification endorsements, may be delivered on a 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 the Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be 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 effect the 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 this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) 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 Incremental Revolving Extending Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment 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), (iii) and (vi) of this Agreementproviso, incorporating be determined by the FILO Subfacility on customary Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as are an existing Class of Term Loans or (y) such other terms as shall be reasonably acceptable satisfactory to the Administrative Agent, including (wii) reallocations the final maturity date of outstanding 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 Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, Facility Commitment shall have (x) the addition same terms as an existing Class of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, Revolving Facility Commitments or (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, have such other terms as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due shall be reasonably satisfactory to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of CreditAdministrative Agent and, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (any other than Noticed Bank Products).terms that would affect t
Appears in 1 contract
Sources: Credit Agreement (Sun Country Airlines Holdings, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Term Loan Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Term Lenders (which may include any existing Lender; provided that no such existing Lender shall be obligated to provide any such Incremental Term Loans unless it so agrees) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Term Loans in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to 50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective (the “Increased Amount Date”), ) and (iviii) whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility are to be Term B Loan Commitments or Canadian Revolving Facility Commitments, and commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Term Loan Commitment of such Incremental Revolving Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall rank pari passu in right of payment and of security with (including being guaranteed by the same Guarantors and being secured on a pari passu basis by the same Collateral as) the Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Borrower and the Administrative Agent; provided that 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 (A) the Applicable Margin then in effect for Eurodollar Rate Loans increased by the amount that any “Eurodollar floor” applicable to such Eurodollar Rate Loans on such date would exceed the Eurodollar Base Rate that would be in effect for a three-month Interest Period commencing on such date plus (B) 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, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (iii) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (c)provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the 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. In additionThis Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (i) above, the Borrowers and each initial yield on any Incremental Revolving Lender accepting a FILO Term Loan Commitment shall execute and deliver to be determined by the Administrative Agent an amendment to be equal to the sum of (x) the interest rate margin above the Eurodollar Rate for loans under the Incremental Term Loan Commitment that bear interest based on the Eurodollar Rate (which shall be increased by the amount that any “Eurodollar floor” applicable to such Incremental Term Loans on the date such Incremental Term Loans are made would exceed the Eurodollar Rate that would be in effect for a three month Interest Period commencing on such date) and (y) if the Incremental Term Loan Commitment is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four).
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) this on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Borrowing Date under Section 5.02 and such additional customary documents and filings (including amendments to the Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, incorporating junior to) the FILO Subfacility on customary terms existing Term B Loans, (iii) no Default or Event of Default shall have occurred and be Continuing or would result therefrom, (iv) the Senior Secured Leverage Ratio (as are reasonably acceptable established pursuant to a certificate of an Authorized Officer of the Borrower showing the Senior Secured Leverage Ratio determined in accordance with Section 7.07 as of the last day of the Fiscal Quarter most recently ended immediately prior to and after giving effect to the incurrence of Incremental Term Loans) is equal to or less than 3.00 to 1.00 and (v) there shall have been paid to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments account of the FILO Loans at Administrative Agent and the Lenders (including any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) Person becoming a Lender as part of such Incremental Assumption Agreement on the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreementrelated Increased Amount Date), as applicable, executed all fees and expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Increased Amount Date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that 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 on a pro rata basis. Section 3.05 shall not apply to any conversion of Eurodollar Rate Loans to Base Rate Loans reasonably required by the Collateral Administrative Agent to effect the foregoing. On each Increased Amount Date, each Lender which is providing an Incremental Term Loan Commitment (as defined thereini) in order to provide shall become a “Lender” for all purposes of this Agreement and the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of CreditLoan Documents, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreementii) shall have, as applicable, an Incremental Term Loan Commitment which shall become “Commitments” hereunder and (iii) (shall make an Incremental Term Loan to the Borrower in a principal amount equal to such Incremental Term Loan Commitment, and such Incremental Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other than Noticed Bank Products)Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Altisource Portfolio Solutions S.A.)
Incremental Commitments. (a) After No later than the date that is 180 days after the Amendment and Restatement No. 1 Effective Date, the Borrowers mayBorrower may request additional Commitments in an aggregate principal amount of up to $30,000,000 (each such additional Commitment, an “Incremental Commitment”) by written notice either (i) incorporating one or more additional lenders acceptable to the Borrower and the Majority Lenders, or (ii) agreeing with any existing Lenders an increase of its respective Commitments (each such existing Lender or other Person that agrees to provide an Incremental Commitment, an “Incremental Lender”); provided that, the Borrower shall make no more than a total of three requests in the aggregate for an Incremental Commitment under this Section. Notwithstanding anything herein to the contrary, (x) no Lender shall have any obligation to agree to provide an Incremental Commitment pursuant to this Section and any election to do so shall be in the sole discretion of such Lender, and (y) after giving effect to all Incremental Commitments, the sum of the unutilized Commitments plus the aggregate outstanding principal amount of Loans shall not exceed $800,000,000.
(b) In order to effect such Incremental Commitment, the Borrower, the applicable Incremental Lender and the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed (on behalf of the Incremental Amount from Lenders) (but no other Lenders or Persons) shall enter into one or more joinder agreements, each substantially in the form attached hereto as Exhibit H, pursuant to which the applicable Incremental Revolving Lenders Lender will provide the applicable Incremental Commitments (which may include each such joinder agreement, an “Incremental Joinder Agreement”).
(c) The obligations of any existing Lender) willing to provide such Incremental Revolving Facility CommitmentsLender under its Incremental Joinder Agreement and this Agreement, as and the case may beeffectiveness of the related Incremental Commitment, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million satisfaction of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form Lenders or waiver thereof by each Incremental Lender of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount each of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million following conditions precedent and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be conditions set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving LendersJoinder Agreements (the date that each such conditions are satisfied or waived, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each “Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).Effective Date”):
Appears in 1 contract
Incremental Commitments. (ai) After the Amendment and Restatement Effective Date, the Borrowers mayThe Company may on one or more occasions, by written notice to the Administrative Agent from time (which shall promptly deliver a copy to timeeach of the Lenders), request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and Commitments and/or
(ii) Incremental Term Commitments be established, in each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such termscase by an amount not less than $25,000,000; provided that the Applicable Margin (including aggregate amount of all Incremental Commitments established hereunder during the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) term of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments Agreement shall not exceed $100 million200,000,000. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments or the Incremental Term Commitments, as applicable, being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments or Incremental Term Commitments, as applicable, are requested to become effective (which shall be not fewer than 10 days or more than 30 days after the “Increased Amount Date”date of such notice or such other date as shall be mutually agreed by the Administrative Agent and the Company). Incremental Commitments may be provided by any Lender or by one or more banks or other financial institutions identified by the Company; provided that (A) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, (iv) whether in its sole discretion, to provide such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments Commitment or Canadian Revolving Facility Commitments, Incremental Term Commitment and (vB) whether any Person that the Company proposes to become an Incremental Lender, if such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on Person is not already a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricingLender hereunder, shall be set forth subject to the approval of the Administrative Agent and, in such notice, if applicable, and shall be as agreed by the relevant case of any proposed Incremental Revolving LendersLender, the Borrowers, each Issuing Bank and the Administrative Agenteach Swingline Lender (which approval shall not be unreasonably withheld).
(b) . The Borrowers Company and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Commitment Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, Lender and/or its status as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving a Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)hereunder.
Appears in 1 contract
Sources: Credit Agreement (Waters Corp /De/)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers mayThe Borrower may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject prior to the approval Maturity Date, the establishment of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable aggregate, cumulative amount of all Incremental Commitments established pursuant to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) 2.22 after the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments Restatement Date shall not exceed $100 million50,000,000. Such Each such notice shall set forth specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be 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 notice is delivered to the Agent, (ii) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (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 Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments Lender or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments other Person (it being understood agreed that (x) all FILO Commitments shall be requested on a single Increased Amount Dateany 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 Agent).
(a) The terms and conditions of any Incremental Commitment and other extensions of credit to be made thereunder shall be identical to the terms and conditions of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, the Commitments and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, Loans and the Administrative Agent)other extensions of credit made hereunder.
(b) The Borrowers Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of the Borrower and each Subsidiary 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, in each case on and as of the date of such Borrowing except with respect to representations and warranties expressly made only as of an earlier date, in which case such representations and warranties were so true and correct on and as of such earlier 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 6.11 on a pro forma basis as if such Loans or other extensions of credit had been incurred or assumed on the first day the most recent four consecutive fiscal quarter period of the Borrower ending prior to the date of such effectiveness, (iv) the Borrower shall make any payments required to be made pursuant to Section 2.14 in connection with such Incremental Revolving Commitments and the related transactions under this Section 2.22 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 2.22.
(c) Upon effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall execute be deemed to be a “Lender” hereunder, and deliver henceforth shall be entitled to all the Administrative Agent an 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 Assumption Agreement and Commitment shall constitute (or, in the event such other documentation as Incremental Lender already has a Commitment, shall increase) the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Lender and (B) the aggregate amount of the parties hereto hereby agrees that 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 Assumption AgreementCommitment, this Agreement 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.
(d) On the date of the effectiveness of any Incremental Commitments, each Lender shall be deemed amended 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 outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans will be held by all the Lenders (including such Incremental 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 SOFR Loans will (except to the extent (but only 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 extentdate 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) necessary after giving effect to increase the U.S. Revolving Facility 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 SOFR 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 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 the effectiveness of such Incremental Commitments shall either be prepaid on such date or refinanced on such date (subject to the Canadian Revolving Facilitysatisfaction of applicable borrowing conditions) with Loans made on such date by the Lenders (including the Incremental Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, as (i) each Incremental Lender will make ABR Loans by transferring funds to the case may be, 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 Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (bon such date) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment such funds will be applied to the prepayment of outstanding ABR Loans held by the Lenders other than the Incremental Lenders, and transferred by the Agent to the Lenders other than the Incremental Lenders, in such 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 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 the Loans of 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.
(e) The Agent shall notify Lenders promptly upon receipt by the Agent of any notice from the Borrower referred to in Section 2.22 and of the effectiveness of any Incremental Commitments, in each case 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 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)2.22.
Appears in 1 contract
Sources: Five Year Revolving Credit Agreement (Artisan Partners Asset Management Inc.)
Incremental Commitments. (a) After Each Incremental Lender party hereto hereby agrees to commit to provide its respective Incremental Commitment as set forth on Schedule 1 annexed hereto, on the Amendment terms and Restatement Effective Date, the Borrowers may, by written notice subject to the Administrative Agent from time to timeconditions set forth below.
(b) On the Increase Effective Date (as defined below), request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender of the existing Lenders shall be subject deemed to assign to each of the Incremental Lenders, and each of the Incremental Lenders shall be deemed to purchase from each of such existing Lenders, at the principal amount thereof (i.e., at par) such interests in the outstanding Loans and participations in Letters of Credit and Swingline Loans outstanding on the Increase Effective Date that will result in, after giving effect to all such deemed assignments and purchases, such Loans and participations in Letters of Credit and Swingline Loans being held by such existing Lenders and the Incremental Lenders ratably in accordance with their Commitments after giving effect to the approval addition of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and Commitments hereby; (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments be deemed, for all purposes, a Commitment and each loan made thereunder shall be on deemed, for all purposes, a Loan and have the same terms as the any existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, Loan and in all respects (iii) each Incremental Lender shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable Lender with respect to the existing Revolving Facility Commitments that is being increased by such and all matters relating thereto.
(c) Each Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that Lender (i) up to $250 million confirms that it has received a copy of the Incremental Revolving Facility Commitments in Credit Agreement and the aggregate may be provided in other Loan Documents, together with copies of the form of FILO Commitments, subject financial statements referred to the requirements of clause (b) of therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Section 2.21 and Agreement; (ii) agrees that it will, independently and without reliance upon the Incremental Revolving Facility Commitments may be Administrative Agent or any other Lender or agent thereunder and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21Credit Agreement; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) appoints and authorizes the date Administrative Agent to take such action as agent on which its behalf and to exercise such Incremental Revolving Facility Commitments powers under the Credit Agreement and the other Loan Documents as are requested delegated to become effective (Administrative Agent by the “Increased Amount Date”)terms thereof, together with such powers as are reasonably incidental thereto; and (iv) whether such Incremental Revolving Facility Commitments agrees that it will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) perform in accordance with their terms all FILO Commitments shall be requested on a single Increased Amount Date, and (y) of the obligations which by the terms of such FILO Commitments, including pricing, shall the Credit Agreement are required to be set forth in such notice, if applicable, and shall be performed by it as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)a Lender.
(bd) The Borrowers and For each Incremental Revolving Lender shall execute and that is a Foreign Lender, delivered herewith to the Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Incremental Lender may be required to deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify pursuant to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Section 5.9 of the parties hereto hereby agrees that upon Credit Agreement.
(e) Immediately after the effectiveness Increase Effective Date, the available increase in the Lenders’ Commitments pursuant to Section 2.1.7 of any Incremental Assumption the Credit Agreement, this subject to the terms and conditions thereof and the terms of the Credit Agreement, shall be $12,500,000. Immediately after the Increase Effective Date, each Lender’s Commitments pursuant to the Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties set forth on Schedule 2 hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
Appears in 1 contract
Sources: Increase Agreement and Amendment (Par Pacific Holdings, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time(who shall promptly notify the Lenders), request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from establishment of one or more new term loan commitments (each, an “Incremental Revolving Lenders Commitment”) pursuant to an Incremental Facility for an aggregate amount (which may include any existing Lenderfor all such requests) willing to provide such Incremental Revolving Facility Commitments, as not exceeding the case may be, in their own discretiondifference between $2,000,000,000 and the aggregate amount of the Loans funded on the Effective Date; provided, that the aggregate amount of each such Incremental Commitment request shall be in a minimum amount of $25,000,000, or the remaining unused amount of the aggregate increase permitted by this Section 2.17, if less, and integral multiples of $10,000,000 in excess thereof.
(ib) An Incremental Commitment may be provided by any existing Lender or other Person that is an Assignee meeting the requirements of Section 9.06(c) (each such existing Lender or other Person that agrees to provide an Incremental Commitment, an “Incremental Lender”); provided that each Incremental Revolving Lender shall be subject to the approval consent (in each case, not to be unreasonably withheld or delayed) of the Administrative Agent. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to provide an Incremental Commitment pursuant to this Section and any election to do so shall be in the sole discretion of such Lender.
(c) The Administrative Agent and the Borrower shall determine the effective date for each Incremental Facility pursuant to this Section (an “Incremental Commitment Effective Date”) and, if applicable, the final allocation of such Incremental Commitments among the Persons providing such Incremental Facility; provided that such date shall be a Domestic Business Day at least three Domestic Business Days after delivery of the request for such Incremental Commitments (unless otherwise approved by the Administrative Agent) and at least 30 days prior to the Maturity Date.
(d) In order to effect any Incremental Facility, the Borrower, the applicable Incremental Lender(s) and the Administrative Agent (but no other Lenders or Persons) shall enter into one or more Joinder Agreements, each in form and substance satisfactory to the Borrower and the Administrative Agent, pursuant to which approval the applicable Incremental Lender(s) will provide the Incremental Commitment(s).
(e) Effective as of the applicable Incremental Commitment Effective Date, subject to the terms and conditions set forth in this Section, each Incremental Commitment shall not be unreasonably withheld) unless a Commitment and Schedule 1.01 shall be updated accordingly to reflect such Incremental Revolving Commitment, each Incremental Lender is providing such Incremental Commitment shall be, and have all the rights of, a Lender, and (ii) each the Loans made by it on such Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and Effective Date shall be on Loans, for all purposes of this Agreement.
(f) Notwithstanding the same terms as foregoing, the existing U.S. Revolving Facility Incremental Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects pursuant to this Section shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable not be effective with respect to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that Lender unless:
(i) up to $250 million The conditions set forth in Section 3.03 have been satisfied as of the applicable Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and Commitment Effective Date;
(ii) the Administrative Agent shall have received one or more Joinder Agreements contemplated above, providing for Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the applicable Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, Facility; and
(iii) the date on which Administrative Agent shall have received such legal opinions and other documents reasonably requested by the Administrative Agent in connection therewith. As of each Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Commitment Effective Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and upon the Administrative Agent’s receipt of the documents required by this paragraph (f).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as , the Administrative Agent shall reasonably specify to evidence record the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of information contained in the parties hereto hereby agrees that upon applicable Joinder Agreement(s) in the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount Register and give prompt notice of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, Borrower and the Borrowers and Lenders (including each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank ProductsLender).
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent at any time and from time to time, request make one or more requests for Incremental Term Advance Commitments and/or Incremental Revolving Facility Commitments Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount Amount, from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Advance Commitments and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Facility Lender and Incremental Term Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Term Lender is a Lender, and (ii) each or Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms Lender, as the existing U.S. Revolving Facility case may be, is a Lender or an Affiliate of a Lender. If any Lender is willing, in its sole and absolute discretion, to provide Incremental Term Advance Commitments or Canadian Revolving Facility Commitmentshereunder, as applicable, it shall execute and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable deliver to the existing Revolving Facility Commitments that is being increased by such Agent an Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth Term Advance Activation Notice specifying (i) the amount of the such Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount)Term Advance Commitment, (ii) the aggregate amount of applicable Incremental Revolving Term Facility Commitments, Maturity Date (which shall not exceed be earlier than the Incremental AmountMaturity Date), (iii) the date on amortization schedule for the corresponding Incremental Term Advances (the average weighted life to maturity of which shall not be shorter than that of the then outstanding Term Advances) and (iv) the Applicable Margin for such Incremental Term Advances (provided that in the event that the all-in margin of such Incremental Term Advances exceeds the Applicable Margin for the Term Advances by more than 0.25% per annum, the Applicable Margin for the Term Advances shall be increased such that the resulting pricing differential shall be equal to 0.25% per annum). Each Lender having an Incremental Term Advance Commitment agrees, subject to the terms and conditions set forth in the applicable Incremental Assumption Agreement, to make Incremental Term Advances to the Borrower, in an aggregate principal amount not to exceed its Incremental Term Advance Commitment. The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Advance Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Advances and/or Incremental Revolving Facility Commitments; provided, that from and after the effectiveness of each Incremental Assumption Agreement, the associated Incremental Revolving Facility Commitments shall thereafter be Revolving Facility Commitments and, in the event that any Incremental Term Advances have the same terms as the Term Advances, such Incremental Term Advances shall thereafter be Term Advances. Each of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Advance Commitments and/or Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (c)provided for in Section 9.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, and no such other party shall have any right to consent to any such deemed amendment.
(b) Notwithstanding the Borrowers and each foregoing, no Incremental Term Advance Commitment or Incremental Revolving Lender accepting a FILO Facility Commitment shall execute and deliver to the Administrative Agent an amendment to become effective under this Section 2.21 unless (i) this Agreementon the date of such effectiveness, incorporating the FILO Subfacility on conditions set forth in Section 4.02(b) shall be satisfied and the Agent shall have received a certificate to that effect dated such date and executed by an officer of the Borrower and (ii) the Agent shall have received board resolutions and other customary terms closing certificates and documentation as are reasonably acceptable required by the relevant Incremental Assumption Agreement and, to the Administrative extent required by the Agent, including consistent with those delivered on the Effective Date.
(wc) reallocations Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Advances in the form of additional Term Advances, when originally made, are included in each Borrowing of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, Term Advances on a standalone pro rata basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Facility Advances in respect of Bank Products (as defined Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Advances on a pro rata basis. The Borrower agrees that Section 2.13 shall apply to any conversion of Eurodollar Rate Advances to Base Rate Advances reasonably required by the U.S. Collateral Agreement or Lenders to effect the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)foregoing.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers 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 Revolving Facility Commitments Commitment”), as applicable, in an aggregate amount not to exceed the Incremental Amount $200,000,000, from one or more Incremental Revolving Lenders (Lenders, all of which may include any existing Lender) willing must be permitted to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval become assignees of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Loans under Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million9.04. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million 5,000,000 (or such lesser amount as the Administrative Agent may agree) and a minimum amount of $25 million 10,000,000 (or such lesser amount as the Administrative Agent may agree) or such lesser amount equal to the remaining Incremental Amount), unused amount) and (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)effective.
(b) The Borrowers Borrower 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), additional banks, financial institutions and other 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 applicable, to additional banks, financial institutions and other institutional lenders. The Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Person. The terms and provisions of the Incremental Revolving LenderCommitments 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 of the parties hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Commitments evidenced thereby, except as required by and the last sentence Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.18 unless (i) on the date of this clause such effectiveness, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied, a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) except as required by clause (c). Any such deemed amendment may be memorialized otherwise specified in writing the applicable Incremental Assumption Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Borrowers’ consent Closing Date under Section 4.01 and (not to be unreasonably withheldiii) all fees and furnished to the other parties hereto. In addition, the Borrowers and each expenses owing in respect of such Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent and the Lenders shall have been paid in full.
(d) On the date of effectiveness of any Incremental Commitments, the Borrower shall
(A) prepay the outstanding Loans (if any) in full, (B) simultaneously borrow new Loans hereunder in an amendment amount equal to such prepayment (iin the case of Eurodollar Borrowings, with Adjusted LIBO Rates equal to the outstanding Adjusted LIBO Rate and with Interest Period(s) this Agreementending on the date(s) of any then outstanding Interest Period(s)); provided that with respect to subclauses (A) and (B), incorporating (x) the FILO Subfacility on customary terms as are reasonably prepayment to, and borrowing from, any existing Lender shall be 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, including so that, after giving effect thereto, the Loans are held ratably by the Lenders in accordance with the respective Commitments of such Lenders (wafter giving effect to such Incremental Commitments) reallocations of outstanding Revolving Loansand (C) pay to the Lenders the amounts, if necessaryany, to evidence the initial Borrowing payable under the FILO Subfacility, (x) the addition Section 2.13 as a result of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)such prepayment.
Appears in 1 contract
Incremental Commitments. (a) After The Borrower and any one or more Lenders (including New Lenders (as defined below)) may from time to time agree that such Lenders shall make, obtain or increase the Amendment amount of their Revolving Commitments by executing and Restatement Effective Date, the Borrowers may, by written notice delivering to the Administrative Agent from time to time, request Incremental Revolving an Increased Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth Activation Notice specifying (i) the amount of such increase and (ii) the Incremental applicable Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Facility Commitments being requested obtained after the ClosingThird Amendment Effective Date pursuant to this paragraph shall not exceed $35,000,00050,000,000 and (which ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in minimum increments of $5 million and a minimum amount of at least $25 million 5,000,000 and (y) no more than three Increased Facility Closing Dates may be selected by the Borrower after the ClosingThird Amendment Effective Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or equal other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.18(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit G, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the remaining Incremental Amount)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 each Increased Facility Closing Date, the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender 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 Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which each such Incremental Revolving Facility Commitments are Type or Eurodollar Tranche requested to become effective be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until the “Increased Amount Date”)expiration of the then-current Interest Period, (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments other rate as shall be requested on a single Increased Amount Date, agreed upon between the Borrower and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)Lender.
(bd) The Borrowers and each Incremental Revolving Lender shall execute and deliver Notwithstanding anything to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each contrary in this Agreement, each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreementthat, on each Increased Facility Activation Date, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence of the Incremental increased Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized effected in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
Appears in 1 contract
Sources: Revolving Credit Agreement (Southern Star Central Corp)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Term Loan Commitments in an amount not to exceed the Incremental Amount available immediately prior to the time such Incremental Term Loan Commitments are established from one or more Incremental Revolving Term Lenders (which may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Term Loans in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 million 5,000,000 and a minimum amount of $25 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective effective, and (the “Increased Amount Date”), (iviii) whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments commitments to make term loans with terms identical to (and which shall be requested on together with any then outstanding 2017 Replacement Term Loans or 2018 Replacement Term Loans, as applicable, form a single Increased Amount DateClass of) the 2017 Replacement Term Loans or the 2018 Replacement Term Loans, and as applicable, or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such notice, if applicable, and shall be as agreed by mandatory prepayments and/or other terms different from the relevant Incremental Revolving Lenders, the Borrowers, 2017 Replacement Term Loans and the Administrative Agent2018 Replacement Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers and each Incremental Revolving Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Term Loan Commitment of such Incremental Revolving Term Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Term Loans; provided, that:
(i) any commitments to make additional 2017 Replacement Term Loans or 2018 Replacement Term Loans shall have the same terms as the 2017 Replacement Term Loans or the 2018 Replacement Term Loans, as applicable, and shall form part of the same Class of 2017 Replacement Term Loans or 2018 Replacement Term Loans, as applicable,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.19 shall rank equally and ratably in right of security with the Initial Term Loans or, at the option of the Lux 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 subject to clause (v) below),
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), shall have (x) the same terms as the 2017 Replacement Term Loans and the 2018 Replacement Term Loans 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 the Term Loans with the Latest Maturity Date,
(v) [reserved],
(vi) such Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Term Loans in any mandatory prepayment hereunder,
(vii) there shall be no borrower (other than the Borrowers) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments, and
(viii) Other Incremental Term Loans shall not be secured by any asset of the Parent or its Subsidiaries other than the Collateral. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided 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 2.19 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.19 unless (i) no Default or Event of Default shall exist; provided that, in the event that any tranche of Incremental Term Loans is used to finance a 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 effect to such tranche of Incremental Term Loans); (ii) the representations and warranties of the Parent and the Borrowers set forth in this Agreement shall be true and each correct in all material respects (other than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided that, in the event that the tranche of Incremental Revolving Lender accepting Term Loans is used to finance a FILO Commitment 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 execute be limited to customary “specified representations” and deliver those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of the Lenders and only to the extent that the Parent or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations; and (iii) the Administrative Agent an amendment shall have received documents and legal opinions consistent with those delivered on the Closing Date as to (i) this Agreement, incorporating the FILO Subfacility on customary terms such matters as are reasonably acceptable to requested by the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely . The Administrative Agent shall promptly notify each Lender as to the FILO Subfacility, effectiveness of each Incremental Assumption Agreement.
(yd) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments Each of the FILO 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 at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank ProductsOther Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis. The Borrowers agree that Section 2.14 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Mallinckrodt PLC)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 60 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), and (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. 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 increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Loan Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving LoansLoans are outstanding, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent Agents (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
(c) Notwithstanding the foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the applicable conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Company, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional 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 Revolving Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis, except that with respect to FILO Commitments, such actions shall ensure FILO Loans in an amount equal to the lesser of (x) the aggregate FILO Commitments or (y) the then-current Borrowing Base applicable to the FILO Subfacility are drawn in full prior to any other Revolving Loans being borrowed at any time. 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 effect the foregoing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Plastics Group Inc)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower Agent may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments Commitments, as applicable, with respect to any Borrowers in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower Agent, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition 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 Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) 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(g) and the Issuing Banks (which approval approvals shall not be unreasonably withheld) withheld or delayed), in each case, unless such Incremental Revolving Facility Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable Lender prior to the existing Revolving Facility Commitments that is being increased by establishment of such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. 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 million 5,000,000 and a minimum aggregate amount of $25 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective (the “Increased Amount Date”)effective, (iviii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments will constitute U.S. are to be (x) commitments to make additional Revolving Facility Commitments Loans on the same terms as the Initial Revolving Loans or Canadian (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Facility Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, and (v) whether such Incremental Revolving Facility Term Loan Commitments will constitute FILO Commitments (it being understood that are to be (x) all FILO Commitments shall be requested commitments to make term loans on a single Increased Amount Date, and the same terms as the 2024 Refinancing Term B Loans or (y) the terms of such FILO Commitments, including commitments to make term loans with pricing, shall be set forth maturity, amortization, participation in such noticemandatory prepayments and/or other terms different from (xw) at all times on and prior to the First Amendment Effective Date (before giving effect thereto), if applicableTerm B Loans, (yx) at all times on and shall be as agreed by after the relevant Incremental Revolving LendersFirst Amendment Effective Date (after giving effect thereto) and prior to the Second Amendment Effective Date, the Borrowers2023 Refinancing Term B Loans and, (zy) at all times on and after the Administrative AgentSecond Amendment Effective Date (after giving effect thereto), the 2024 Refinancing Term B Loans and (z) at all times on and after the Fourth Amendment Effective Date (after giving effect thereto), the 2024 Incremental Term B Loans (such term loans at any given time, “Other Term Loans”).
(b) The Borrowers Borrower Agent and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional 2024 Refinancing Term B Loans, 2024 Incremental Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the 2024 Refinancing Term B Loans, 2024 Incremental Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower Agent, junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans and the 2024 Incremental Term Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term Facility Maturity Date applicable to each of the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower Agent and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of each of the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower Agent, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower Agent and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the (a) 2024 Refinancing Term B Loans on the Second Amendment Effective Date or (b) 2024 Incremental Term B Loans on the Fourth Amendment Effective Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such (a) 2024 Refinancing Term B Loans on the Second Amendment Effective Date byand/or (b) 2024 Incremental Term B Loans on the Fourth Amendment Effective Date by, in each case, no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such 2024 Refinancing Term B Loans or 2024 Incremental Term B Loans, as applicable, shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “Term SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “Term SOFR floor” applicable to the outstanding 2024 Refinancing Term B Loans or 2024 Incremental Term B Loans, as applicable, shall be increased to an amount not to exceed the “Term SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such 2024 Refinancing Term B Loans or 2024 Incremental Term B Loans, as applicable, then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (B) has a maturity date that is at least two (2) years after the Term Facility Maturity Date applicable to the 2024 Refinancing Term B Loans or the 2024 Incremental Term B Loans, as applicable (this clause (vii), the “MFN Provision”); provided, further that, with respect to the 2024 Incremental Term B Loans, the MFN Provision shall only apply to Subject Term Loans that are incurred after the Fourth Amendment Effective Date and on or prior to the 12 month anniversary of the Fourth Amendment Effective Date;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Revolving Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, on a junior basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Term Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans, in each case, on a junior basis) than the 2024 Refinancing Term B Loans and/or the 2024 Incremental Term B Loans in any mandatory prepayment hereunder; and
(A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent, the Borrower Agent with the Borrowers’ consent (not to be unreasonably withheld) and any other applicable Borrower and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the Borrowers conditions set forth in clause (c) of Section 4.01 shall be satisfied and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower Agent and (B) (I) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other similar permitted Investment, no Event of Default under Section 7.01(b), (c), (h) or (i) this Agreementshall have occurred and be continuing or would result therefrom or (II) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for any other purpose, incorporating no Default or Event of Default shall have occurred or be continuing or would result therefrom and (ii) the FILO Subfacility on Administrative Agent shall have received customary terms as are reasonably acceptable legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments or supplements to the Collateral Documents, as applicable, and modification endorsements, which, in the case of such amendments or supplements and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents or hereunder) 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 Liens on the Collateral ratably with (w) reallocations of outstanding Revolving Loans, if necessaryor, to evidence the initial Borrowing under extent set forth in the FILO Subfacilityapplicable Incremental Assumption Agreement, (xjunior to) the addition one or more Classes of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of then-existing Term Loans and Revolving Facility CommitmentsLoans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), or FILO Commitmentswhen originally made, as are included in each Borrowing of the case may be, outstanding applicable Class of Term Loans on a standalone pro rata basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments Facility Loans in respect of Bank Products Incremental Revolving Facility Commitments (as defined 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 Borrowers agree that Section 2.16 shall apply to any conversion of SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the 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 this Section 2.21), pursuant to one or more offers made from time to time by the Borrower Agent to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the U.S. Collateral Agreement or case of an offer to the Canadian Collateral AgreementLenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (other than Noticed Bank Products“Pro Rata Extension Offers”)., the Borrower Agent is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Of
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Incremental Commitments. (a) After Subject to and upon the Amendment terms and Restatement Effective Dateconditions set forth herein, the Borrowers may, by written notice to the Administrative Agent from time to time, request each Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that Lender severally agrees (i) each to make available Incremental Revolving Lender shall be subject Commitments equal to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless commitment amount set forth next to such Incremental Revolving Lender is a Lender, ’s name on Annex I hereto under the caption “Incremental Commitments” and (ii) each Incremental Revolving to make Acquisition Facility Loans to the Borrowers and participate in Acquisition Facility Letters of Credit from time-to-time in an aggregate principal amount at any one time outstanding not to exceed its respective Acquisition Facility Commitment shall increase either (as set forth on Schedule 1.0 to the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall Credit Agreement), each such agreement to be on the same terms effective as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, Amendment Effective Date (as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agentdefined below).
(b) The Borrowers and As of the Amendment Effective Date, each Incremental Revolving Lender shall execute and deliver be a party to the Administrative Agent Credit Agreement and, to the extent provided in this Amendment, have the rights and obligations of an Incremental Assumption Acquisition Facility Lender under the Credit Agreement and such under the other documentation as Loan Documents and shall be bound by the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each provisions thereof.
(c) As of the parties hereto hereby agrees that upon Amendment Effective Date, the effectiveness Acquisition Facility Commitments of any Incremental Assumption each Acquisition Facility Lender shall be as set forth on Schedule 1.0 to the Credit Agreement.
(d) On the Amendment Effective Date, the extensions of credit outstanding under the Acquisition Facility, and participations therein (as applicable) shall be reallocated as contemplated by Section 4.1(b)(iv) of the Existing Credit Agreement.
(e) This Amendment shall constitute an Acquisition Facility Increase under the Existing Credit Agreement and this Agreement Amendment shall be deemed amended to be the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, Increase and New Lender Agreement contemplated by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Existing Credit Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)any such increase.
Appears in 1 contract
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount at the time such Incremental Revolving Commitments are established from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Commitments in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments an Affiliate of a Lender or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 millionan Approved Fund. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million 1,000,000 and a minimum amount of $25 million 5,000,000 or equal to the remaining Incremental AmountAmount or such lesser amount approved by the Administrative Agent), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), and (iviii) whether that such Incremental Revolving Facility Commitments will constitute U.S. shall be commitments to make additional Revolving Facility Commitments or Canadian Loans (such additional Revolving Facility CommitmentsLoans, and (v) whether such the “Incremental Revolving Facility Loans”) on the same terms as the Revolving Loans made pursuant to the Commitments will constitute FILO Commitments in effect on the Closing Date (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental “Initial Revolving Lenders, the Borrowers, and the Administrative AgentFacility Loans”).
(b) The Borrowers Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the parties applicable Incremental Revolving Commitments. Each party hereto hereby agrees that that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the Borrowers conditions set forth in clauses (b) and each Incremental Revolving Lender accepting a FILO Commitment (c) of Section 4.01 shall execute be satisfied and deliver to the Administrative Agent an amendment shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (iii) this Agreementthe Administrative Agent shall have received customary legal opinions, incorporating board resolutions and other customary closing certificates and documentation as required by the FILO Subfacility on customary terms as are reasonably acceptable relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Loans in respect of Incremental Commitments are secured by the Collateral ratably with one or more Classes of the then existing Loans.
(wd) reallocations Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, Loans on a standalone pro rata basis, and (z) a prohibition on optional prepayments . The Borrower agrees that Section 2.16 shall apply to any conversion of the FILO Eurocurrency Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed ABR Loans reasonably required by the Collateral Administrative Agent (as defined therein) in order to provide for effect the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)foregoing.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (DS Services of America, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers mayThe Company 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 Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million aggregate amount of all the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments established hereunder shall not exceed $100 million250,000,000 during the term of this Agreement. Such Each such notice shall set forth specify (iA) the date on which the Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent and each Lender participating in the requested increase) after the date on which such notice is delivered to the Administrative Agent, and (B) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood agreed that (x) all FILO Commitments shall be requested on a single Increased Amount Dateany 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 terms of such FILO Commitments, including pricing, shall be set forth in such noticeCompany proposes to become an Incremental Lender, if applicablesuch Person is not then a Lender, and shall must be as agreed approved by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent, each Issuing Lender and the Swingline Lender (such approval not to be unreasonably withheld)).
(b) The Borrowers 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 Revolving Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall execute become effective unless (i) on the date of effectiveness thereof, both immediately prior to and deliver 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 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 such date, except to the extent such representations and warranties 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 earlier date), (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section, (iv) the Company shall have delivered to the Administrative Agent an Incremental Assumption Agreement such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and such other documentation documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction and (v) each guarantor shall reasonably specify have reaffirmed its Guarantee of the Obligations. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to evidence this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Revolving Facility 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 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 Revolving Lender. Each Lender and (B) the Total 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 parties hereto hereby agrees that term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Assumption AgreementCommitment, this Agreement 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 deemed amended to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the extent (but only effectiveness of such Incremental Commitments shall pay to the extentAdministrative Agent in same day funds an amount equal to the difference between (A) necessary the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to increase the U.S. Revolving Facility or effectiveness of such Incremental Commitments) multiplied by (2) the Canadian Revolving Facility, as the case may be, by 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 Facility Borrowings, (iii) each Incremental Lender that shall not have had a Commitment prior to the effectiveness of such Incremental Commitments evidenced therebyshall pay to Administrative Agent in 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, except as required (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, 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 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 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 or such Borrower shall deliver such 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 sentence day of this clause the Interest Period relating thereto.
(bf) and as required by clause (c). Any such deemed amendment may be memorialized in writing The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent with of any notice from the Borrowers’ consent (not Company referred to in Section 2.05(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be unreasonably withheld) and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment made pursuant to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products2.05(e).
Appears in 1 contract
Sources: Credit Agreement (Tyson Foods Inc)
Incremental Commitments. (a) After Solely with the Amendment and Restatement Effective Dateconsent of the Required Lenders (acting in their sole discretion), the Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender; provided that no such existing Lender shall be obligated to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Commitments in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount)requested, (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iviii) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility are to be Term B Loan Commitments or Canadian Revolving Facility Commitments, and commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the parties hereto hereby agrees applicable Incremental Commitments; provided that upon with respect to Incremental Term Loans, (A) the effectiveness Other Term Loans shall rank pari passu or junior in right of any Incremental Assumption Agreement, this Agreement payment and of security with (including being guaranteed by the same Guarantors and being secured on a pari passu or junior basis by the same Collateral as) the Term B Loans and shall have (x) the same terms as the Term B Loans or (y) such other terms as shall be deemed amended satisfactory to the extent Borrower and the Required Lenders (but only to the extentacting in their sole discretion) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, with the consent of the Required 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. In additionThis Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in Section 5.01(b) shall be satisfied or waived and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent shall have received a certificate to that effect dated such date and executed by an amendment Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and such additional customary documents and filings (iincluding amendments to the Security Documents) this as the Administrative Agent may reasonably require to assure that the Incremental Loans and Incremental Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Lenders in the applicable Incremental Assumption Agreement, incorporating junior to) the FILO Subfacility on customary terms as are reasonably acceptable existing Term B Loans, (iii) no Default or Event of Default shall have occurred and be Continuing or would result therefrom and (iv) there shall have been paid to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments account of the FILO Loans at Administrative Agent and the Lenders (including any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) Person becoming a Lender as part of such Incremental Assumption Agreement on the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreementrelated Increased Amount Date), as applicable, executed all fees and expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Increased Amount Date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans on a pro-rata basis. Section 3.05 shall not apply to any conversion of Term SOFR Loans to Base Rate Loans reasonably required by the Collateral Administrative Agent to effect the foregoing. On each Increased Amount Date, each Lender which is providing an Incremental Commitment (as defined thereini) in order to provide shall become a “Lender” for all purposes of this Agreement and the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of CreditLoan Documents, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreementii) shall have, as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) (shall make an Incremental Term Loan to the Borrower in a principal amount equal to such Incremental Commitment, and such Incremental Loan or Incremental Commitment shall be a “Loan” or “Commitment” for all purposes of this Agreement and the other than Noticed Bank Products)Loan Documents.
Appears in 1 contract
Sources: Super Senior Loan Credit Agreement (Altisource Portfolio Solutions S.A.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments Term Loan Commitments, in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Term Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, Term Loans in their own discretion; provided, that (i) each Incremental Revolving Term Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (iisuch consent would be required under Section 9.04); and provided provided, further, that (i) up Incremental Term Loans may be incurred without regard to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject Amount solely to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, extent that the Canadian Revolving Facility Commitments Net Proceeds therefrom are used substantially concurrently with the incurrence of such Incremental Term Loans to prepay existing Term Loans in accordance with the first sentence of Section 2.11(b) (it being understood that such Incremental Term Loans shall not exceed $100 millionbe deemed Excluded Indebtedness). Such notice shall set forth (i) the amount of the Incremental Revolving Facility Term Loan Commitments being requested (which shall be in minimum increments of $5 5.0 million and a minimum amount of $25 25.0 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iviii) whether such Incremental Revolving Facility Term Loan Commitments will constitute U.S. Revolving Facility Commitments are to be commitments to make additional Term Loans or Canadian Revolving Facility Commitments, and commitments to make term loans with pricing and/or amortization terms different from the existing Term Loans (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent“Other Term Loans”).
(b) The Borrowers Borrower and each Incremental Revolving Term Lender shall execute and deliver an Incremental Assumption Agreement. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans (all such Incremental Term Loans to be made pursuant to any Incremental Assumption Agreement, a “Series”); provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and, except as to pricing, currency, amortization, voluntary prepayments and final maturity date, shall have (w) the same terms as the Term Loans, (x) such other terms as shall be reasonably satisfactory to the Administrative Agent an Incremental Assumption Agreement and Agent, (y) be on market terms at such time or (z) be on terms that would apply after the latest Term Facility Maturity Date determined as of the Increased Amount Date, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term Facility Maturity Date (other documentation than Other Term Loans consisting of a customary bridge facility, so long as the Administrative Agent long-term Indebtedness into which such customary bridge facility is to be converted satisfies the requirements set forth in this clause (ii)) and (iii) the weighted average life to maturity of any Other Term Loans shall reasonably specify be no shorter than the remaining weighted average life to evidence maturity of the existing Term Loans, as applicable (other than Other Term Loans consisting of a customary bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted satisfies the requirements set forth in this clause (iii)); provided, further, that in the event that the Effective Yield for any Incremental Revolving Facility Term Loan incurred by the Borrower on or prior to the date that is twenty-four months after the Closing Date under any Incremental Term Loan Commitment is higher than the Effective Yield for the outstanding Term Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the Applicable Margin for the Term Loans at the time such Incremental Revolving LenderTerm Loans are incurred shall be increased to the extent necessary so that the Effective Yield for the Term Loans is equal to the Effective Yield for such Incremental Term Loans minus 50 basis points. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, Agreement this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase reflect the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount existence and terms of the Incremental Revolving Facility Term Loan Commitments evidenced thereby, except thereby as required by the last sentence of this clause (b) and as required by clause (cprovided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. In addition.
(c) Notwithstanding the foregoing, the Borrowers and each no Incremental Revolving Lender accepting a FILO Term Loan Commitment shall execute and deliver to the Administrative Agent an amendment to become effective under this Section 2.21 unless (i) this Agreement, incorporating on the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations date of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacilitysuch effectiveness, (x) the addition representations and warranties set forth in Article III shall be true and correct in all material respects as of voting provisions such date, in Section 9.08 that relate solely each case, with the same effect as though made on and as of such date, except to the FILO Subfacilityextent 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), immediately after giving effect to such Borrowing and no Event of Default or Default shall have occurred and be continuing or would result therefrom or (y) if the addition proceeds of assignment provisions such Incremental Term Loans are being used to fund a Limited Condition Transaction of the type described in Section 9.04 allowing for clause (a) of the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basisdefinition thereof, and (z) a prohibition on optional prepayments the Lenders providing such Incremental Term Loans so agree, the availability thereof shall be subject to customary “SunGard” conditionality, it being understood that in any event, no Specified Event of Default shall have occurred and be continuing or result from such Borrowing and the FILO Loans at any time when Revolving Loansuse of proceeds thereof, and (ii) an amendment the Administrative Agent shall have received customary documents and filings (including amendments to Section 5.02(bthe 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 Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Loans.
(d) Each of the U.S. Collateral Agreement or Section 5.02(bparties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans) in the form of the Canadian Collateral Agreementadditional existing Term Loans, as applicable, executed by the Collateral Agent (as defined therein) when originally made, are included in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization each Borrowing of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreementexisting Term Loans, as applicable) (other than Noticed Bank Products), on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Term SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
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Incremental Commitments. (a) After Each Incremental Lender on, and subject to the Amendment and Restatement Effective Dateoccurrence of, the Borrowers may, by written notice Second Amendment Effective Date hereby severally agrees to make Loans to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments Borrower in a single Borrowing in an aggregate principal amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, Lender’s Incremental Commitments as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date opposite its name on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenders, the Borrowers, and the Administrative Agent)Annex I attached hereto.
(b) The Borrowers Incremental Lenders, the Lenders, the Facility Agent, the Security Trustee, the Borrower and the Guarantors agree that this Second Amendment effects the provisions of Section 2.21 of the Credit Agreement as amended by this Second Amendment with respect to such Incremental Commitments and shall constitute a Joinder Agreement pursuant to and in accordance with Section 2.21 of the Credit Agreement as amended by this Second Amendment.
(c) Upon the incurrence of a Loan pursuant to this Second Amendment, such Loan shall be subject to the interest rates (including the Margin) and terms, repayment, voluntary prepayment terms and mandatory prepayment terms applicable to the Loans as set forth in the Credit Agreement.
(d) On (and subject to the occurrence of) the Second Amendment Effective Date, each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of the parties party hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to provided in this Second Amendment and the extent) necessary to increase Credit Agreement, shall have the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount rights and obligations of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) a Lender thereunder and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to under the other parties hereto. In addition, the Borrowers applicable Loan Documents.
(e) The Borrower and each Incremental Revolving Lender accepting a FILO Commitment shall execute Guarantor acknowledges and deliver to the Administrative Agent an amendment to agrees that (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable Borrower shall be liable for all Obligations with respect to all Loans made to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, Borrower pursuant to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, this Second Amendment and (ii) an amendment all such Obligations (including all such Loans pursuant to Section 5.02(bthis Second Amendment) shall constitute Guaranteed Obligations and shall be entitled to the benefits of the U.S. Collateral Agreement or Section 5.02(bSecurity Documents and the Guarantees.
(f) The Incremental Commitment of each Incremental Lender shall automatically terminate upon the making of the Canadian Collateral Agreement, as applicable, executed Loans pursuant to this Second Amendment on the Second Amendment Effective Date.
(g) The proceeds of the Loans pursuant to this Second Amendment shall be used by the Collateral Agent (as defined therein) in order to provide Borrower solely for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined purposes set forth in the U.S. Collateral Agreement second recital of this Second Amendment and any amounts repaid, prepaid or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)cancelled may not be reborrowed.
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Incremental Commitments. (a) After The Borrower shall have the Amendment right, in consultation and Restatement Effective Datecoordination with the Lead Lender as to all of the matters set forth below in this Section 2.15, but without requiring the Borrowers mayconsent of any Agent or the Lenders (except, by written notice in either case, as otherwise expressly provided in this Section 2.15), to request at any time and from time to time after the Closing Date and prior to the Final Maturity Date that the 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 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 to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Borrower an Incremental Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be Agreement as provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and 2.15, no Lender shall be obligated to fund any Revolving Loans in excess of 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 Incremental Commitment provided pursuant to this Section 2.15, (ii) each Lender may so provide an Incremental Commitment without the Incremental Revolving Facility Commitments may be in consent of the form Incremental European Revolving CommitmentsAdministrative Agent or any other Lender, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (iiii) the aggregate amount of the each request (and provision therefor) for Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and 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 $25 million 5,000,000 (or equal such lesser amount that is acceptable to the remaining Incremental AmountLead Lender), (iiiv) the aggregate amount of Incremental 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 shall not increase the Total Revolving Facility CommitmentsLoan Commitment pursuant to this Section 2.15 more than three times, (vi) the Applicable Margins with respect to Revolving Loans to be incurred pursuant to an Incremental Commitment shall be the same as those applicable to any other Revolving Loans and (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 Loan Documents and shall be secured by the relevant Security Documents, and guaranteed under the Guarantee Agreement, on a pari passu basis will 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 Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Letters of Credit pursuant to Section 2.01(b), 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 Loan Documents.
(a) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, (I) the Borrower, each Guarantor, the Administrative Agent and 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 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 AmountCommitment Requirements have been satisfied, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), all conditions set forth in this Section 2.15 shall have been satisfied and (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood all other conditions precedent that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall may be set forth in such noticeIncremental Commitment Agreement shall have been satisfied) and (II) the Borrower, if applicable, and shall be as agreed by the relevant Incremental Revolving Lenderseach Guarantor, the Borrowers, and the Administrative Agent).
(b) The Borrowers Collateral Agent and each Incremental Revolving Lender Lender, as applicable, shall execute and deliver to the Administrative Agent an and the Collateral Agent amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Assumption Agreement and such other documentation as 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 Revolving Facility Commitment Commitments of such Incremental Revolving Lender. Each of Lenders.
(b) It is understood and agreed that 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 increase the U.S. Revolving Facility Commitments provided by an Incremental Lender or the Canadian Revolving FacilityIncremental Lenders, as the case may be, by the amount of the pursuant to each Incremental Revolving Facility Commitments evidenced therebyCommitment Agreement shall constitute part of, except as required by the last sentence of this clause (b) and as required by clause (c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. In additionadded to, the Borrowers Total Revolving Loan Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Loan Document.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 2.15, the Borrower shall repay outstanding Revolving Lender accepting a FILO Commitment shall execute Loans of certain of the Lenders, and deliver incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders), in each case to the Administrative Agent an amendment 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 (iany increase in the Total Revolving Loan Commitment pursuant to this Section 2.15) this Agreement, incorporating and with the FILO Subfacility on customary terms as are reasonably acceptable Borrower being obligated to pay to the Administrative Agent, including (w) reallocations respective Lenders any costs of outstanding Revolving Loans, if necessary, the type referred to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely 2.11 in connection with any such repayment and/or Borrowing.
(d) For the avoidance of doubt, the Borrower shall not have the right to request any Incremental Commitments from any Person other than the Lenders party to the FILO Subfacility, (y) Credit Agreement at the addition time of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products)such request.
Appears in 1 contract
Sources: Exit Abl Credit Agreement (Pyxus International, Inc.)
Incremental Commitments. (a) After the Amendment and Restatement Effective Date, the Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) As of the Amendment No. 1 Effective Date:
(A) each Lender shall hold commitments in respect of the Revolving Loan Facility as set forth on Part B of Schedule 1.1A hereto and each Issuing Bank’s LC Commitment shall be as set forth on Part C of Schedule 1.1A hereto, in each case, on the terms and subject to the conditions set forth below and in the Amended Credit Agreement;
(B) each of the Lenders, immediately prior to giving effect to this Amendment (the “Existing Lenders”), shall be deemed to have assigned to each of the Incremental Lenders, and each of the Incremental Lenders shall be deemed to have assumed from each of the Existing Lenders, at the principal amount thereof, such interests in the Loans outstanding on the Amendment No. 1 Effective Date such that, after giving effect to each such deemed assignment and assumption of participations and to the Incremental Lenders becoming Lenders, the percentage of the aggregate outstanding Loans held by each Lender will equal such ▇▇▇▇▇▇’s Pro Rata Share of the Commitments;
(C) each Incremental Revolving Commitment shall be deemed, for all purposes, a “Commitment” under the Amended Credit Agreement and each Incremental Loan shall be deemed, for all purposes, a “Loan”;
(D) after giving effect to the Incremental Commitments, the LC Commitments of each Lender shall be reallocated such that the percentage LC Commitments of each Lender will equal such Lender’s Pro Rata Share of the Commitments;
(E) each Incremental Lender agrees to make the Incremental Commitments available under and subject to the approval terms and conditions of the Administrative Agent Amended Credit Agreement as an increase to, and on identical terms as the Commitments (which approval as amended hereby) and shall not become an “Issuing Bank”, “Secured Party” and a “Lender” under the Amended Credit Agreement with respect to the Incremental Commitments and all matters relating thereto; and
(F) in accordance with Section 2.11 of the Amended Credit Agreement, each of the Existing Lenders will automatically and without further act be unreasonably withheld) unless such deemed to have assigned to each Incremental Revolving Lender is a Lender, and each such Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such Existing Lender’s participations in outstanding Letters of Credit, such that, after giving effect to each such deemed assignment and assumption of participations and to the Incremental Lenders becoming Lenders, the percentage of the aggregate outstanding participations in Letters of Credit by each Lender will equal such ▇▇▇▇▇▇’s Pro Rata Share of the Commitments.
(ii) each Each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become Lender:
(A) confirms that it received a part of the U.S. Revolving Facility or Canadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) copy of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, and (v) whether such Incremental Revolving Facility Commitments will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be requested on a single Increased Amount Date, and (y) the terms of such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and shall be as agreed by the relevant Incremental Revolving LendersAmendment, the Borrowers, and the Administrative Agent).
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Existing Credit Agreement and such other documentation as documents and information it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and to provide its Incremental Commitment hereunder and make the Incremental Loans with respect thereto on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent shall reasonably specify or any Lender;
(B) confirms that it is sophisticated with respect to evidence the Incremental Revolving Facility Commitment decisions to make loans similar to those contemplated to be made hereunder and that it is experienced in making loans of such Incremental Revolving Lender. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreementtype;
(C) appoints, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by the last sentence of this clause (b) authorizes and as required by clause (c). Any such deemed amendment may be memorialized in writing by instructs the Administrative Agent with to take such action as agent on its behalf and to exercise such powers under the Borrowers’ consent (not to be unreasonably withheld) Amended Credit Agreement and furnished to the other parties hereto. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms Loan Documents or any other instrument or document furnished pursuant hereto or thereto as are reasonably acceptable delegated to the Administrative Agent, including by the terms thereof, together with such powers as are reasonably incidental thereto; and
(wD) reallocations acknowledges and agrees that it shall be an “Issuing Bank”, “Secured Party” and “Lender” under, and for all purposes of, the Amended Credit Agreement and the other Loan Documents, be subject to and bound by the term thereof and perform all the obligations of outstanding Revolving Loans, if necessary, to evidence and shall have all the initial Borrowing under the FILO Subfacility, rights of a Lender.
(xiii) the addition of voting provisions in Section 9.08 that relate solely The Administrative Agent and each Issuing Bank hereby consents to the FILO Subfacility, (y) Incremental Lenders’ providing the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Incremental Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
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