Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount not to exceed the Incremental Amount from one or more Incremental 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 Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) and (iii) whether such Incremental Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”). (b) The Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving Credit 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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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) 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 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 Credit Commitments, as applicable, (iii) no Default or Event 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 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. (e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Sources: Credit Agreement (Altisource Portfolio Solutions S.A.)
Incremental Commitments. (a) The U.S. Borrower or the Dutch Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount (unless constituting an Extension in accordance with clauses (e) through (i) of this Section 2.21) from one or more Incremental Term Lenders and/or Incremental Revolving Facility 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 Commitments Term Loans and/or Incremental Revolving Facility Loans, as the case may be, in their own discretion; provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $1.0 million and a minimum amount of $50,000,000 or, if less, 25.0 million or equal to the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) 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) (a) whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term B Loan Commitments, Revolving Credit Commitments Loans or commitments to make term loans with pricing and/or amortization terms different from the an existing Class of Term B Loans (“Other Term Loans”) and/or (b) whether such Incremental Revolving Facility Commitments are to be Canadian Tranche Commitments, European Tranche Commitments, U.S. Tranche Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Canadian Tranche Revolving Facility Loans, European Tranche Revolving Facility Loans and U.S. Tranche Revolving Facility Loans (“Other Revolving Facility Loans”).
(b) The U.S. 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 CommitmentsTerm Loans and/or Incremental Revolving Facility Loans to be made thereunder; provided that (i) Revolving Credit 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 and Other Revolving Facility Loans shall rank pari passu or junior in right of payment and of security with the Existing Term Loans and Revolving Facility Loans and (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 pricing and final maturity date, amortization) shall have (x) the same terms as the Existing Term B Loans, (ii) the final maturity date of (a) any Other Term Loans or (y) such other terms as shall be reasonably satisfactory to no earlier than the Borrower latest Term Facility Maturity Date of any then existing Term Loans and (b) any Other Revolving Facility Loans shall be no earlier than the Administrative Agentlatest Revolving Facility Maturity Date then in effect; provided that with respect any Other Revolving Facility Loans may provide for an acceleration of their maturity to Incremental Term Loansan Early Maturity Test Date if, on such Early Maturity Test Date, 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 aggregate principal amount of Early Maturity Notes (as determined by the Administrative Agent as set forth belowdefined in clause (a) on the of such definition) that mature within 91 days after such Early Maturity Test Date exceeds $200.0 million and any Other Term Loans exceeds by more than 50 basis points (may provide for an acceleration of their maturity to an Early Maturity Test Date if, on such Early Maturity Test Date, the aggregate principal amount of Early Maturity Notes (as defined in clause (b) of such excess above 50 basis points being herein referred definition) that mature within 91 days after such Early Maturity Test Date exceeds $400.0 million, (iii) the weighted average life to as maturity of any Other Term Loans shall be no shorter than the “Yield Differential”weighted average life to maturity of the Term Loans and (iv) the Other Revolving Facility Loans shall require no scheduled amortization or mandatory commitment reductions prior to the latest Revolving Facility Maturity Date then in effect; provided further that the interest rate margins then in effect for outstanding Term Loans margin (which shall be calculated deemed 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) include all upfront or similar fees or original issue discount paid payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan) in respect of any Other Term Loan and/or Other Revolving Facility Loan shall not be greater than that applicable to the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment; except that the interest rate margin in respect of any Other Term Loan and/or Other Revolving Facility Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan) may exceed the Applicable Margin for the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment), respectively, by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Borrower generally to the Lenders who provided the outstanding Term Loans in the primary syndication thereof Administrative Agent based on an assumed four-year life to maturity), then or if it does so exceed such Applicable Margin (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment), such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Term Loan or Other Revolving Facility Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan), is no more than 1/2 of 1% higher than the Applicable Margin then in effect for outstanding the Extended Maturity Term Loans shall automatically or the Committed Extended Revolving Facility Commitment, respectively (which shall, for such purposes only, be increased by deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Yield Differential, effective upon the making of the Incremental Extended Maturity Term Loans under and/or the Committed Extended Revolving Facility Commitment). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each 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 LoansAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 10.019.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the U.S. Borrower’s consent (not to be unreasonably withheld) and 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. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 or Incremental Revolving Facility Commitment shall become effective under this Section 2.12 2.21 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(bparagraphs (b) and (c) of Article IV 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 a Financial Officer of the U.S. Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary received 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 4.02 of the 2005 Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security DocumentsDocuments and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and and/or Incremental Commitments Revolving Facility Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Credit Commitments, as applicable, Facility Loans and (iii) no Default or Event of Default shall have occurred and the U.S. Borrower would 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 Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the incurrence of Incremental Term Loans and/or Incremental Revolving Facility Loans to be made thereunder 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 application of the Administrative Agent proceeds therefrom as if made and the Lenders (including any Person becoming a Lender as part of applied on 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 Datedate.
(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 and/or Incremental Revolving Facility Loans (other than Other Term Loans or Other Revolving Facility Loans) in the form of additional Term B Loans), when originally made, are included in each Borrowing of outstanding Term B Loans or Revolving Facility Loans under the same Tranche on a pro-pro rata basis. , and the Borrowers agree that Section 3.05 2.17 shall not apply to any conversion of Eurodollar Rate Eurocurrency Loans to ABR Loans or Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. On each Increased Amount Date.
(e) Notwithstanding anything to the contrary in Section 2.11(d), each Lender 2.12(a) or 2.19(c) (which is providing an Incremental Commitment 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 any Borrower to all Lenders, on a pro rata basis (based on the aggregate outstanding Term Loans and Revolving Facility Commitments) and on the same terms (“Pro Rata Extension Offers”), each 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 and to otherwise modify the terms of such Lender’s Loans and/or Commitments 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 become mean, when comparing Term Loans and Revolving Facility Commitments, that the Term Loans and Revolving Facility Commitments are offered to be extended for the same amount of time (for this purpose interim amortization of the Term Loans in an annual amount of up to 1% of the original principal amount thereof shall not be taken into account) 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 a 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”)).
(f) The applicable Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the applicable Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as a Class of existing 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 for the Existing Term Loans, (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 Existing Term Loans, (iv) except as to interest rates, fees and final maturity, any Extended Revolving Facility Commitment shall be a Revolving Facility Commitment with the same terms as a Class of Existing Revolving Facility Loans and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments or commitment reductions hereunder; provided, however, that (A) the interest rate margins for any Extended Term Loan shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to Extended Maturity Term Loans plus 1/2 of 1% (and the interest rate margins applicable to the Extended Maturity Term Loans shall be increased to the extent necessary to achieve the foregoing), (B) the interest rate margins for any Extended Revolving Facility Commitment shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the Committed Extended Revolving Facility Commitment plus 1/2 of 1% (and the interest rate margins applicable to the Committed Extended Revolving Facility Commitment shall be increased to the extent necessary to achieve the foregoing) and (C) solely for purposes of the foregoing clauses (A) and (B), the interest rate margins applicable to any Extended Maturity Term Loan or Extended Revolving Facility Commitment shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Extended Term Loans or Extended Revolving Facility Commitments based on an assumed four-year life to maturity). Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the applicable 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 Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (iii) shall haveif such Extending Lender is extending a Term Loan, as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) shall make such Extending Lender will be deemed to have an Incremental Term Loan or provide having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Credit Commitment Increase to the Borrower in a principal amount equal to such Incremental Facility Commitment, and such Extending Lender will be deemed to have an Incremental Loan or Incremental Revolving Facility Commitment shall be a “Loan” or “having the terms of such Extended Revolving Facility Commitment” for all purposes of this Agreement and the other Loan Documents.
(eh) Upon each Revolving Credit Commitment Increase pursuant Notwithstanding anything to the contrary set forth in this SectionAgreement or any other Loan Document (including without limitation this Section 2.21), (i) each the aggregate amount of Extended Term Loans and Extended Revolving Credit Lender immediately prior to such increase Facility Commitments will automatically and without further act not be deemed to have assigned to each existing Revolving Credit Lenderincluded in the calculation of the Incremental Amount, if any, and each Incremental Lender, if any, in each case providing a portion of such Revolving Credit Commitment Increase and (ii) if, on the date of such no Extended Term Loan or Extended Revolving Credit Facility Commitment Increase, there are is required to be in any Revolving Credit Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion necessary and appropriate to result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increaseminimum amount or any minimum increment; provided that any prepayment made in connection with the taking tranche of such steps shall be accompanied by accrued interest on the Revolving Credit Extended Term 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.or Extended R
Appears in 1 contract
Sources: Incremental Assumption Agreement (Momentive Specialty Chemicals Inc.)
Incremental Commitments. (a) The Borrower maymay 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 Commitments, provided that the aggregate amount of all the Incremental Commitments in established after the Restatement Effective Date under this Section 2.20 shall not exceed $20,000,000 (it being understood, for the avoidance of doubt, that the additional Commitments established on the Restatement Effective Date are not Incremental Commitments and the Second Restatement Agreement is not an amount not to exceed Incremental Facility Agreement). Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender; provided that no such existing Lender Commitments shall be obligated effective, which shall be a date not less than 15 days after the date on which such notice is delivered to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments in their own discretion. Such notice shall set forth the Administrative Agent, and (iii) the amount of the Incremental Commitments being requested (whichrequested, for and shall offer to each Non-Defaulting Lender the opportunity to provide a portion of the amount of the Incremental Commitments comprised being requested equal to its Applicable Percentage (calculated disregarding the Commitments of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 orDefaulting Lenders, if lessany) thereof. Each Lender shall, by notice to the remaining Incremental Amount, Borrower and in integral multiples of $10,000,000 in excess thereof), (ii) the Administrative Agent given not more than seven days after the date on which such 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 are 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 Commitments 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 (an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the “Increased Amount Date”) Administrative Agent and (iii) whether such Incremental Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”)each Issuing Bank.
(b) The Borrower 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 Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of providing such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving Credit 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 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 Term LoansCommitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) the interest rates and amortization schedule Borrower shall (subject have delivered to the following criteriaAdministrative Agent 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) be determined by 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 Commitments and the Incremental Term Lenders providing related transactions under this Section 2.20 and (iv) the Borrower shall have delivered to the Administrative Agent such Incremental Term Loans andlegal opinions, if the initial yield (board resolutions, secretary’s certificates, officer’s certificates and other documents as determined shall reasonably be requested by the Administrative Agent as set forth below) on the Other Term Loans exceeds by more than 50 basis points (the amount of in connection with any 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 Loanstransaction. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Facility Agreement may, without the consent of the other Lendersany Lender, effect such amendments to this Agreement or any and the other Loan Document Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to 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 (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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) 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 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 Credit Commitments, as applicable, (iii) no Default or Event 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 Dateincrease referred to in paragraph (b) above), 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 Upon the effectiveness 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 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 of any Incremental Lender, (i) such Incremental Lender, if not already a Lender, shall become be deemed to be a “Lender” for hereunder, and henceforth shall be entitled to all purposes the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of this Agreement Lenders hereunder and under the other Loan Documents, (ii) shall have, as applicable, an such Incremental Commitment which shall become “Commitments” hereunder constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (iiiB) the Aggregate Commitment shall make an be increased by the amount of such Incremental Term Loan Commitment, in each case, subject to further increase or provide a 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 Credit Commitment Increase 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 Borrower in a principal amount equal date of effectiveness of any Incremental Commitments, each Lender shall assign to each Incremental Lender holding such Incremental Commitment, and each such Incremental Loan or Incremental Commitment 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 shall be a “Loan” or “Commitment” for all purposes of this Agreement and the other Loan Documents.
(e) Upon each Revolving Credit Commitment Increase pursuant to this Sectionnecessary in order that, (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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after giving effect to all such Revolving assignments and purchases, such Loans and participations in Letters of Credit Commitment Increase; provided that any prepayment made in connection with and Protective Advances will be held by all the taking of Lenders (including such steps shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender Incremental Lenders) ratably in accordance with Section 3.05their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitment. The Administrative Agent and shall notify the Lenders hereby agree that promptly of the minimum borrowingeffectiveness of any Incremental Commitments, pro-rata borrowing advising the Lenders of the details thereof and pro-rata payment requirements contained elsewhere in this Agreement shall not apply of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to any transaction that may be effected made pursuant to the immediately preceding sentencethis paragraph.
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Incremental Commitments. (a) The Borrower Company may, by written upon five (5) Business Days’ notice to the Administrative Agent from time to timeAgent, request Incremental Commitments in an increase the Revolving Loan Commitment amount not to exceed the Incremental Amount from by adding one or more Incremental Lenders (which may include any existing lenders or increasing the Revolving Loan Commitment of a 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 Commitments , determined by the Company in their own its sole discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) and (iii) whether such Incremental Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Lender shall execute and deliver subject to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment consent of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving Credit 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 Swingline Lender and amortization schedule shall Issuing Banks (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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) ), which lender or lenders are willing to commit to such increase (each such lender, a “New Lender,” 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. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) abovecommitment, the initial yield on any “Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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”); provided, the amount of such OID divided by four.
(c) Notwithstanding the foregoinghowever, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless that (i) on the date Company may not elect any Incremental Commitment after the occurrence and during the continuance of such effectivenessan Event of Default, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate including, without limitation, any Event of Default that would result after giving effect to that effect dated such date and executed by an Authorized Officer of the Borrowerany Incremental Commitment, (ii) each Incremental Commitment shall be in an amount not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (iii) after giving effect to all Incremental Commitments the Administrative Agent aggregate Revolving Loan Commitments shall have receivednot exceed the Dollar Equivalent of $5,000,000,000 and (iv) on the effective date of the Incremental Commitment, each New Lender will, to the extent required by applicable, purchase at par that portion of outstanding Loans of 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 Lenders or take such additional customary documents and filings (including amendments to the Security Documents) other actions as the Administrative Agent may reasonably require determine to assure that be necessary to cause the Incremental Loans and Incremental Commitments are secured funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata 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 Credit Commitments, as applicable, (iii) no Default or Event 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 the Revolving Loan Commitments. An Incremental Commitment shall become effective upon the execution by each applicable New Lender of the last day a counterpart 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 this Agreement 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 delivering such counterpart to the Administrative Agent, for . Over the account term of the Administrative Agent Agreement the Company shall increase the Revolving Loan Commitments no more than five (5) times. Notwithstanding anything to the contrary in this Agreement, any Incremental Commitment made pursuant to this Section 2.14 may be effected by adding one or more tranches of Revolving Loan Commitments that are denominated in an Alternative Currency and/or term loan commitments (which shall be deemed to be “Revolving Loan Commitments” for purposes of this Section 2.14 (other than clause (iv) above)), and the Lenders (including agree that 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 amendment required 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 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 implement an Incremental Commitment (i) shall become a “Lender” for all purposes may be effected by the consent of this Agreement the Company and only those Lenders that agree to participate in any such tranche, provided that 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 aggregate amount of the commitments do not exceed the Dollar Equivalent of $5,000,000,000 at any time. Notwithstanding anything to the Borrower in a principal amount equal to such Incremental Commitmentcontrary herein, and such Incremental Loan or Incremental Commitment no Lender shall be a “Loan” or “Commitment” for all purposes of this Agreement and the other Loan Documents.
(e) Upon each Revolving Credit required to increase its 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence2.14.
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Incremental Commitments. (a) The Borrower mayBorrowers may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request Incremental Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Lenders (Lenders, which may include any existing Lender; provided that (i) no such existing Lender shall be obligated required to provide any such Incremental Commitment, (ii) each Incremental Lender shall be subject to the approval of the Administrative Agent and the Borrowers (which approvals shall not be unreasonably withheld or delayed) and (iii) the aggregate amount of Incremental Commitments unless it so agrees) willing to provide such shall not exceed the Incremental Commitments in their own discretionCommitment Amount. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for which shall not exceed the then-current Incremental Commitments comprised of Term B Loan Commitments Commitment Amount and Other Term Loans, shall be in minimum increments of $5,000,000 and a minimum amount of $50,000,000 or, if less, 20,000,000 or equal to the remaining Incremental Commitment Amount, ) and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than 60 days after the “Increased Amount Date”) and date of such notice (iii) whether such which time periods for notice may be modified or waived at the discretion of the Administrative Agent)). All loans made pursuant to any Class of Incremental Commitments established under this Section 2.12 are referred to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“herein as "Other Term Loans”)" and will rank pari passu or junior in right of payment and security with the Term Loans and will, if pari passu in right of security with the Term Loans, benefit equally and ratably from the Liens under the Collateral Agreements. Each Class of Other Term Loans will have terms and conditions substantially identical to the Term Loans (other than with respect to pricing, amortization and maturity) and otherwise will be on terms and subject to conditions reasonably satisfactory to the Administrative Agent.
(b) The Borrower Borrowers and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental CommitmentsOther Term Loans to be made thereunder; provided that (i) Revolving Credit Commitment Increases shall have that, without the same terms as prior written consent of Lenders holding a majority of the existing Revolving Credit Commitments under this Agreement, (ii) with respect to Incremental Term principal amount of the outstanding Loans, (Ai) 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 mature no earlier than the Tranche B-1 Term B Facility Maturity Date and (C) the will have a Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Tranche B-1 Term B Loans, (ii) if the interest rate spread applicable to any Other Term Loans (which, for this purpose, shall be deemed to include all upfront or similar fees or original issue discount and any pricing "floor" applicable to such Other Term Loans), but excluding any underwriting, arrangement, structuring or other fees payable in connection therewith that are not generally shared with the Lenders (collectively, "Upfront Payments"), in each case, paid to the Incremental Lenders in respect of such Other Term Loans, exceeds the interest rate spread applicable to the Tranche B-1 Term Loans (taking into account the Upfront Payments paid to the Lenders in respect of the establishment of the Tranche B-1 Term Loans and any pricing "floor" applicable to the Tranche B-1 Term Loans) by more than 0.50%, then the interest rate spread applicable to the Tranche B-1 Term Loans shall be increased so that it equals (after taking into account Upfront Payments made in respect of the establishment of the Tranche B-1 Term Loans and any pricing "floor" applicable to the Tranche B-1 Term Loans) the interest rate spread applicable to the Other Term Loans less 0.50%. For purposes of the foregoing, any original issue discount associated with the Tranche B-1 Term Loans or any Other Term Loans will be converted to an interest rate spread equivalent by dividing the percentage amount of such original issue discount by the lesser of (A) the Weighted Average Life to Maturity of such Loans and (B) four.
(c) Each Incremental Assumption Agreement shall require the consent of only the Parent, the Borrowers, the Administrative Agent and the Incremental Lenders providing the applicable Other Term Loans, but, in each case, not the consents of any other Lenders. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents (other than the Intercreditor Agreement) shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Other Term Loans evidenced thereby, including the amount and final maturity thereof, any provisions relating to amortization and the interest to accrue and be payable thereon and any fees to be payable in respect thereof, and to effect such other changes (including changes to the provisions of Sections 4.08, 10.06 and 10.12, the definition of "Required Lenders" and any other provisions of any Loan Commitments evidenced thereby Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights under the Loan Documents or make any determination or grant any consent under the Loan Documents) as provided for the Borrowers and the Administrative Agent shall deem necessary or advisable in Section 10.01connection with the establishment of such Other Term Loans. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s Borrowers' consent (not to be unreasonably withheldwithheld or delayed) 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. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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.
(cd) Notwithstanding the foregoing, no Incremental Term Loan Commitment Assumption Agreement shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, effectiveness and after giving effect to the making of any Other Term Loans contemplated thereby the conditions set forth in paragraphs (o) and (p) of Section 5.01(b) 5.01 shall be satisfied or waived satisfied, (ii) all fees owing in respect of such Incremental Commitments to the Administrative Agent and the Lenders and all expenses in respect of such Incremental Commitments that the Borrowers are required to reimburse have been paid in full and (iii) 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 it shall reasonably request relating to such Other Term Loans, consistent with those delivered on the Closing Effective 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 Credit Commitments, as applicable, (iii) no Default or Event 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 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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 3.055.01. 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 any transaction that may be effected pursuant promptly notify each Lender as to the immediately preceding sentenceeffectiveness of each Incremental Assumption Agreement.
Appears in 1 contract
Incremental Commitments. (a) 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, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental 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 Commitments Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $5,000,000 and a minimum amount of $50,000,000 or, if less, 25,000,000 or equal to the then-remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) and ), (iii) in the case of any Incremental Term Commitment, whether such Incremental Term Loan Commitments are to be Term B A-1 Loan Commitments, Revolving Credit Term A-2 Loan Commitments or commitments to make term loans with pricing and/or amortization other terms different from the Term B 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 are to be additional Revolving Facility Commitments or commitments to make revolving loans with pricing and/or other terms different from the Revolving Facility Loans (“Other Revolving Loans”).
(b) The Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental CommitmentsLoans; provided that provided, that
(i) Revolving Credit 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 A-2 Facility Maturity Date and Date;
(Cii) the Weighted Average Life 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 maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term B 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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.0111.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of any Lender (other than the other applicable Incremental Lenders), effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 four2.15.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 2.15 unless (i) on the date of such effectiveness, the conditions condition set forth in paragraph (b) of Section 5.01(b) 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 an Authorized a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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 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 AgreementAgreement in accordance with clause (b)(viii) above, junior to) the existing Term B Loans Loans; and Revolving Credit Commitments, as applicable, (iii) no Default or Event of Default shall have occurred and be Continuing 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, (ivx) the Senior Secured Leverage Ratio (as established pursuant to a certificate of an Authorized Officer absence of the Borrower showing the Senior Secured Leverage Ratio determined in accordance with existence of any Default or Event of Default (other than an Event of Default under 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(a8.01(b), (c), (h) or (bi), as the case may be, have been (or were required to be) delivered immediately prior to and after giving effect shall not be a condition to the incurrence of such Incremental Loans Facility and (y) the foregoing clause (i) shall be limited, to the extent agreed with the Incremental CommitmentsLender(s) is equal providing such Incremental Facility, to customary “specified representations” and those representations of the seller or less than 3.00:1.00 the target company (assuming as applicable) included in the case of any Revolving Credit Commitment Increase acquisition agreement related to such Permitted Business Acquisition that the entire amount thereof is fully drawn) and (v) there shall have been paid are material to the Administrative Agent, for the account interests of the Administrative Agent Lenders and only to the Lenders (including any Person becoming extent that Holdings or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a Lender as part result of a breach 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 Daterepresentations.
(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 B A-1 Loans, Term A-2 Loans or Revolving Facility Loans, as the case may be, when originally made, are included in each Borrowing of outstanding Term B A-1 Loans, Term A-2 Loans or Revolving Facility Loans, as applicable, on a pro-pro rata basis. The Borrower agrees that 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) The 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, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental 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 Commitments Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $5,000,000 and a minimum amount of $50,000,000 or, if less, 25,000,000 or equal to the then-remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) and ), (iii) in the case of any Incremental Term Loan Commitment, whether such Incremental Term Loan Commitments are to be Term B A-1 Loan Commitments, Revolving Credit Term A-2 Loan Commitments or commitments to make term loans with pricing and/or amortization other terms different from the Term B 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 are to be additional USD Revolving Facility Commitments, additional Multicurrency Revolving Facility Commitments or commitments to make revolving loans with pricing and/or other terms different from the Revolving Facility Loans (“Other Revolving Loans”).
(b) The applicable Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental CommitmentsLoans; provided that provided, that
(i) Revolving Credit 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 A-2 Facility Maturity Date; provided that 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 Term A-2 Facility Maturity Date and but no earlier than the Term A-1 Facility Maturity Date;
(Cii) the Weighted Average Life 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 maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term B A-2 Loans. Each ; 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 parties hereto hereby agrees that, upon Term A-2 Loans but no shorter than the effectiveness remaining weighted average life to maturity of any Incremental Assumption Agreement, this Agreement the Term A-1 Loans;
(iv) Holdings and Products shall be amended use their commercially reasonable efforts to increase the face amount of the Title Policies with respect to the extent (but only Jesup Facility to an amount that is at least equal to the extentaggregate 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) necessary to reflect then outstanding or requested, provided that (A) in no event shall the existence and terms aggregate face amount of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by Title Policies exceed $1,250,000,000, and (B) the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, from time to time, and without the consent of the other Lendersany requirement for Lender consent, effect waive such amendments requirement to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 (increase 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.title insurance;
(cv) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless Leverage Ratio Test (i) tested only on the date of such effectiveness, the conditions set forth in Section 5.01(binitial incurrence of the applicable Incremental Facility) shall be satisfied or waived and the Administrative Agent shall have received on a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, Pro Forma Basis (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 Credit Commitments, as applicable, (iii) no Default or Event 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 assumptions referred to or less than 3.00:1.00 (assuming in the case last paragraph of the definition of “Incremental Amount”), provided that to the extent the proceeds of any Revolving Credit Commitment Increase that Incremental Facility (or Incremental Notes) are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, compliance with the entire amount thereof is fully drawn) and (v) there Leverage Ratio Test 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 calculated 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 Pro Forma Basis at the Administrative Agent to effect the foregoing. On each Increased Amount relevant Test 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increase; provided that any prepayment made 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 taking Leverage Ratio Test, the Leverage Ratio Test shall be deemed 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 arranger of such steps shall Incremental Facilities or its affiliates) applicable to any Incremental Term Facility incurred within 12 months after the Restatement Date will not be accompanied by accrued interest more than 0.50% higher than the corresponding all-in yield (determined on the Revolving Credit Loans being prepaid and any costs incurred same basis) applicable to the Term A-2 Facility, unless the Applicable Margin with respect to the Term A-2 Facility is increased by any Lender an amount equal to the difference between the all-in accordance yield with Section 3.05. The Administrative Agent respect to such Incremental Term Facility and the Lenders hereby agree 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 the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement 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) (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 transaction that may Incremental USD Revolving Facility incurred at any time after the Restatement Date and taking the form of a new tranche of revolving credit facilities will not be effected pursuant more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the immediately preceding sentence.USD Revolving Facility, unless the 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 interest rate margin for the USD Revolving Facility;
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility 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 Commitments Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $10.0 million and a minimum amount of $50,000,000 or, if less, 50.0 million or equal to the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) 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, whether such Incremental Term Loan Commitments are commitments to be make Term B Loan Commitments, Revolving Credit Commitments B-6 Loans or commitments to make term loans with pricing interests rates and/or amortization and/or maturity and/or other terms different from the Term B B-6 Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Extended Maturity Revolving Facility Commitments or commitments to make revolving loans with interest rates and/or fees and/or maturity and/or other terms different from Revolving Loans under the Extended Maturity Revolving Facility Commitments (“Other Revolving Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental 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 provided, that (i) Revolving Credit 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 pricinginterest rates, amortization and final maturity datedate (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (x) the same terms as the Term B Loans B-6 Loans, as applicable, 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, (Bii) the final maturity date of any Other Term Loans shall be no earlier than the latest Term B Facility Maturity Date and in effect on the date of incurrence, (Ciii) the Weighted Average Life weighted average life to Maturity maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term B B-6 Loans, (iv) except as to interest rates, fees and final maturity date (which shall, subject to clause (v) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) the same terms as the Revolving Facility Loans under the Extended Maturity Revolving Facility Commitments or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent and (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date applicable to Extended Maturity Revolving Facility Commitments. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 10.019.08(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, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 or Incremental Revolving Facility Commitment shall become effective under this Section 2.12 2.21 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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 Credit Commitments, as applicable, (iii) no Default or Event of Default shall have occurred and be Continuing continuing or would result therefrom, (ivii) the Borrower shall be in Pro Forma Compliance (without giving effect to the proviso in the definition of Total First Lien Senior Secured Leverage Ratio (as established pursuant Net Debt) after giving effect to a certificate of an Authorized Officer such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date; provided that 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 shall not be required to bebe in such Pro Forma Compliance with respect to Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments not to exceed $500.0 million in the aggregate since the Closing Date or with respect to Incremental Term Loan Commitments in respect of Refinancing Term Loans or Extended Term Loans or Incremental Revolving Facility Commitments in respect of Extended Revolving Facility Commitments or Replacement Revolving Facility Commitments and (iii) delivered immediately prior to and after giving effect to the incurrence of any Loans under such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments on the date of such effectiveness such Loans shall constitute Obligations that are secured by the Collateral and Incremental Commitments) is equal to or less than 3.00:1.00 (assuming such incurrence shall not result in a reduction in the case outstanding amount 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) Obligations that are due permitted to be secured by the Collateral without equally and payable on or before the Increased Amount Dateratably securing any Retained Notes.
(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 B-6 Loans, when originally made, are included in each Borrowing of outstanding Term B B-6 Loans on a pro-pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments with respect to any Revolving Facility, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans under such Revolving Facility on a pro rata basis. The Borrower agrees that Section 3.05 2.16 shall not apply to any conversion of Eurodollar Rate Eurocurrency Loans to Base Rate ABR Loans reasonably required by the Administrative Agent to effect the foregoing. On each Increased Amount Date, each Lender .
(e) Notwithstanding anything to the contrary in Section 2.11(a) or Section 2.18(c) (which is providing an Incremental Commitment 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 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 and to otherwise modify the terms of such Lender’s Loans and/or Commitments 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 become 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. 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”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term B-6 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 B 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 and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall (x) be a “Revolving Facility Commitment with the same terms as the Extended Maturity Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) 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 and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender” for all ’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (iii) shall haveif such Extending Lender is extending a Term Loan, as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) shall make such Extending Lender will be deemed to have an Incremental Term Loan or provide having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Credit Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment Increase having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the Borrower contrary set forth in a principal this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount equal to such of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental CommitmentAmount, and such Incremental (ii) no Extended Term Loan or Incremental Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitment 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 and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment 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 or Extended Revolving Facility Commitment implemented thereby and (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a “Loan” or “Commitment” for pari passu basis with all purposes of other Obligations under this Agreement and the other Loan Documents.
(ei) Upon each Revolving Credit Commitment Increase 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 Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clause (j) through (o) of this SectionSection 2.21), the Borrower may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (“Refinancing Term Loans”), the First Lien Net Proceeds of which are used to repay Term Loans pursuant to Section 2.11(h). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent; provided that: (i) before and after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date each Revolving Credit Lender immediately prior of the conditions set forth in Section 4.01 shall be satisfied; (ii) 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 Term B-6 Loans; and (iii) all other terms applicable to such increase will automatically Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and without further act final maturity which shall be deemed as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) shall be substantially similar to, or less favorable to have assigned the Lenders providing such Refinancing Term Loans than, those applicable to each existing Revolving Credit Lenderthe Term B-6 Loans except to the extent such covenants and other terms apply solely to any period after the latest final maturity of the Term Loans in effect on the date of incurrence of such Refinancing Term Loans. In addition, if anynotwithstanding the foregoing, and each Incremental Lender, if any, in each case providing a the Borrower may establish Refinancing Term Loans to refinance and/or replace all or any portion of a Revolving Facility Commitment (regardless of whether Revolving Facility Loans are outstanding under such Revolving Credit Commitment Increase Facility Commitments at the time of incurrence of such Refinancing Term Loans), so long as (i) the aggregate amount of such Refinancing Term Loans does not exceed the aggregate amount of Revolving Facility Commitments terminated at the time of incurrence thereof and (ii) if, if the Revolving Facility Credit Exposure outstanding on the date Refinancing Effective Date would exceed the aggregate amount 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 result in each Revolving Credit Lender having a pro-rata share of the Facility Commitments outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.i
Appears in 1 contract
Incremental Commitments. (a) The Borrower mayCompany may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request the establishment, during the Availability Period, of Incremental Commitments, provided that the aggregate amount of all the Incremental Commitments in an amount established hereunder shall not to exceed $250,000,000 during the term of this Agreement. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender; provided that no such existing Lender Commitments shall be obligated effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to provide any by the Administrative Agent and each Lender participating in the requested increase) after the date on which such Incremental Commitments unless it so agrees) willing notice is delivered to provide such Incremental Commitments in their own discretion. Such notice shall set forth the Administrative Agent, and (iB) the amount of the Incremental Commitments being requested (whichit being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, for in its sole discretion, to provide such Incremental Commitments comprised of Term B Loan Commitments Commitment and Other Term Loans, shall be in minimum amount of $50,000,000 or(y) any Person that the Company proposes to become an Incremental Lender, if lesssuch Person is not then a Lender, must be approved by the remaining Incremental AmountAdministrative Agent, each Issuing Lender and in integral multiples of $10,000,000 in excess thereof), the Swingline Lender (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) and (iii) whether such Incremental Commitments are approval not to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”unreasonably withheld)).
(b) The Borrower terms and each Incremental Lender shall execute conditions (including the applicable facility fee and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the interest rate spreads) of any Incremental Commitment and Loans and other extensions of such Incremental Lender. Each Incremental Assumption Agreement credit to be made thereunder shall specify the terms be identical to those of the applicable Incremental CommitmentsCommitments and Loans and other extensions of credit made hereunder, and shall be treated as a single Class with such Commitments and Loans; provided provided, that (i) Revolving Credit Commitment Increases shall have the same terms as the existing Revolving Credit Commitments under this Agreement, (ii) Company at its election may pay upfront or closing fees with respect to Incremental Term Loans, Commitments without paying such fees with respect to the other Commitments.
(Ac) the Other Term Loans The Incremental Commitments shall rank pari passu in right of payment be effected pursuant to one or more Incremental Facility Agreements executed and of security with (including being guaranteed delivered by the same Guarantors and being secured on a pari passu basis by the same Collateral as) the Term B Loans andCompany, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans or (y) each Incremental Lender providing such other terms as shall be reasonably satisfactory to the Borrower Incremental Commitments and the Administrative Agent; provided that with respect no Incremental Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term LoansCommitments, 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 interest rates representations and amortization schedule warranties of each Loan Party set forth in the Loan Documents that are qualified by materiality shall (subject 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 following criteriaextent 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 determined by the Borrower made pursuant to Section 2.16 in connection with such Incremental Commitments and the Incremental Term Lenders providing related transactions under this Section, (iv) the Company shall have delivered to the Administrative Agent such Incremental Term Loans andlegal opinions, if the initial yield (board resolutions, secretary’s certificates, officer’s certificates and other documents as determined shall reasonably be requested by the Administrative Agent as set forth belowin connection with any such transaction and (v) 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 each guarantor 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 have reaffirmed its Guarantee 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 LoansObligations. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Facility Agreement may, without the consent of the other Lendersany Lender, effect such amendments to this Agreement or any and the other Loan Document Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.12. This Section 2.12 shall supersede any provision Section.
(d) Upon the effectiveness of Section 2.11 or Section 10.01 to the contrary. For purposes an Incremental Commitment of clause (ii)(A) above, the initial yield on any Incremental Term 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 be determined by constitute (or, in the Administrative Agent to be equal to the sum of (xevent such Incremental Lender already has a Commitment, shall increase) the interest rate margin above Commitment of such Incremental Lender and (B) the Adjusted Eurodollar Rate for loans under the Incremental Term Loan Total Commitment that bear interest based on the Adjusted Eurodollar Rate (which shall be increased by the amount that any “Eurodollar floor” applicable to of such Incremental Term Loans on Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Credit Exposure of the Incremental Lender holding such Commitment, and the Applicable 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 Term Loans are made would exceed Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the Adjusted Eurodollar Rate that would be effectiveness of such Incremental Commitments 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 for a three month Interest Period commencing on to the effectiveness of such dateIncremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (yB) if the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Term Loan Commitment is originally advanced at a discount or Commitments) multiplied by (2) the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for doing so (the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Lender that shall not have had a Commitment prior to the effectiveness of such discount or fee, expressed as a percentage Incremental Commitments shall 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 Incremental Term Loan CommitmentResulting Revolving Borrowings, being referred to herein as “OID”)(iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate 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 dated to the effectiveness of such date and executed Incremental Commitments) multiplied by an Authorized Officer (2) the aggregate amount of the BorrowerExisting 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, (iiv) 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 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 Credit Commitments, as applicable, (iii) no Default or Event 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 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 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 DateInterest Period relating thereto.
(df) Each of the parties hereto hereby agrees that the 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 shall notify 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 Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to effect in Section 2.05(a) and of the foregoing. On each Increased Amount Date, each Lender which is providing an effectiveness of any 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) if, on advising 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 result in each Revolving Credit Lender having a pro-rata share Lenders of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share details thereof and of the revolving Credit Commitments immediately Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to such Revolving Credit Commitment Increase; provided that any prepayment be 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentenceSection 2.05(e).
Appears in 1 contract
Sources: Credit Agreement (Tyson Foods Inc)
Incremental Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent on four occasions during the period from time the Closing Date to timeFebruary 1, 2015, request Incremental incremental Commitments in an amount not less than $25,000,000 per request and not more than $200,000,000 in the aggregate, together with any increase to the Revolving Committed Amount (under and as defined in the Revolving Credit Agreement) and incremental term loans under the Term Loan B Agreement (such that the Committed Amount after such increase shall never exceed $350,000,000 minus (x) any increase to the Revolving Committed Amount and (y) any incremental term loans under the Term Loan B Agreement)(the “Incremental Amount Limit”) from one or more Incremental additional 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, each, a “New Term Loan Lender”) willing to provide such Incremental incremental Commitments in their own discretion; provided, that each New Term Loan Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such New Term Loan Lender is a Lender or an Affiliate of a Lender. Such notice shall set forth (i) the amount of the Incremental incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amountrequested, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental incremental Commitments are requested to become effective (the “Increased Amount Date”). On any Increased Amount Date on which any such incremental Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to the Borrowers (a “New Term Loan”) in an amount equal to its incremental Commitment, and (iiiii) whether each New Term Loan Lender shall become a Lender hereunder with respect to such Incremental incremental Commitment and the New Term Loans made pursuant thereto. The terms and provisions of the New Term Loans and the incremental Commitments are shall be identical to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term existing Loans”).
(b) The Borrower Borrowers and each Incremental New Term Loan Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving Credit 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 New 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 LoansLender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreementsuch documentation, this Credit Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental incremental Commitments and New Term Loan Commitments Loans evidenced thereby as provided for in Section 10.01. Any (including adjusting the Commitment Percentages), and new Notes shall be issued and the Borrowers shall make 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, it being understood that such Incremental Assumption Agreement may, borrowings without the consent of the Lenders other Lenders, effect than those Lenders with incremental Commitments. The fees payable by the Borrowers upon any such amendments to this Agreement or any other Loan Document as may incremental Commitments shall be necessary or appropriate, in the opinion of agreed upon by the Administrative Agent, to effect the provisions New Term Loan Lenders and the Borrowers at the time of such increase. Notwithstanding the foregoing, nothing in this Section 2.12. This Section 2.12 2.7 shall supersede constitute or be deemed to constitute an agreement by any provision of Section 2.11 or Section 10.01 Lender to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan increase its Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 fourhereunder.
(c) Notwithstanding the foregoing, no Incremental Term Loan incremental Commitment shall become effective under this Section 2.12 2.7 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) 5.2 shall be satisfied or waived assuming a Loan were then being made and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer a financial officer of the BorrowerBRT, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Effective Date under Section 5.02 5.1 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 require, 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 Credit Commitments, as applicable, (iii) no Default or Event of Default the Borrowers shall have occurred and be Continuing or would result therefrom, (iv) in pro forma compliance with 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 covenants set forth 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 7.2 after giving effect to such incremental Commitments, the incurrence of Incremental Loans to be made thereunder 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 application of the Administrative Agent proceeds therefrom as if made and the Lenders (including any Person becoming a Lender as part of applied on 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 Datedate.
(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 New Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing borrowing of outstanding Term B Loans on a pro-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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Sources: Term Loan Agreement (Brandywine Operating Partnership, L.P.)
Incremental Commitments. (ai) The Borrower may, Borrowers may by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) request, from time to time, request Incremental Commitments in an amount not to exceed time (a) the Incremental Amount from extension of one or more Incremental Lenders (which may include term loan commitments or one or more increases in any existing Lender; provided that no such existing Lender shall be obligated to provide term loan commitments (any such new or increased term loan commitment, an “Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount DateCommitment”) and (iiib) whether such Incremental Commitments are to be Term B Loan Commitments, the extension of one or more new Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving Credit Commitment Increases shall have the same terms as one or more increases in the existing Revolving Credit Commitments under this Agreement(any such new or increased Revolving Credit Commitment, an “Incremental Revolving Credit Commitment”), in an aggregate amount (ii) with respect to both Incremental Term LoansCommitments and Incremental Revolving Credit Commitments) not to exceed $125,000,000. Each Incremental Commitment shall be in an aggregate amount not less than $5,000,000 and integral multiples thereof (or such lesser amount and/or multiples as may be agreed by the Borrowing Agent and the Administrative Agent). Each notice delivered pursuant to this Section 3.1 shall specify (I) the date (the “Increase Effective Date”) on which the Borrowers propose that the proposed Incremental Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date in which such notice is delivered to the Administrative Agent (unless otherwise consented to by the Administrative Agent in its DMEAST #35945034 v12 47 discretion), (AII) the Other Term Loans shall rank pari passu in right total of payment and of security with (including being guaranteed the Incremental Commitments requested by the same Guarantors Borrowers and being secured on a pari passu basis by the same Collateral as(III) the Term B Loans andidentity of the banks, except as financial institutions and other entities to pricingwhom the Borrowers propose that any portion of such Incremental Commitments be allocated and the amounts of such allocations, amortization and final maturity datewhich banks, shall have (x) the same terms as the Term B Loans financial institutions or (y) such other terms as entities may or may not be existing Lenders but who shall be Eligible Assignees. Any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment. Any proposed new Lender shall enter into a joinder or other agreement in form and substance 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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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) 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 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 Credit Commitments, as applicable, (iii) no Default or Event 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 its counsel (such additional Eligible Assignees becoming Lenders (including and 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 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 existing Lenders 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) if, on the date of such Revolving Credit Commitment Increase, there are any Revolving Credit Loans outstandingcollectively, the Administrative Agent shall take those steps which it deems, in its sole discretion necessary and appropriate to result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence“Incremental Lenders”).
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Incremental Commitments. At any time following the earlier of (ax) The completion of the syndication of the Revolving Loan Facility (as reasonably determined by the Administrative Agent) and (y) 90 days after the Closing Date and prior to the Revolving Facility Maturity Date, the Borrower may, may by written notice to the Administrative Agent from time elect to timerequest an increase to the existing Revolving Facility Commitments (any such increase, the “Incremental Revolving Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental Commitments Term Facility Commitments” and together with the Incremental Revolving Facility Commitments, if any, the “Incremental Commitments”), in an amount aggregate principal amount, collectively, not to exceed the Incremental Amount from one or more Incremental Lenders greater of (which may include any existing Lender; provided that no such existing Lender shall be obligated x) U.S. $50.0 million and (y) U.S. $100.0 million if on a Pro Forma Basis, after giving effect to provide any the incurrence of such Incremental Commitments unless it so agrees) willing to provide Term Loans or such Incremental Commitments Revolving Facility Commitments, the First Lien Leverage Ratio would not exceed 3.50 to 1.00, or, in their own discretioneach case, a lesser amount in integral multiples of U.S. $5.0 million. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) specify the date on which such Incremental Commitments are requested to become effective (the an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall be made available, which shall be a date not less than 5 Business Days (iiior such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion) whether after the date on which such notice is delivered to the Administrative Agent. The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender or other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, and in the case of any Person committing to any Incremental Revolving Facility Commitment, reasonably acceptable to the Issuing Banks and the Swingline Lenders (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental Commitments are have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to be provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date, and in the case of Incremental Term B Loan Facility Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B such new Loans in respect thereof (“Other Incremental Term Loans”).
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and be made on such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental CommitmentsIncreased Amount Date; provided that (i) Revolving Credit Commitment Increases no Default or Event of Default shall have the same terms as the existing Revolving Credit exist on such Increased Amount Date before or after giving effect to such Incremental Commitments under this Agreement, and Incremental Term Loans; (ii) with respect the representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date; (iii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such Incremental Commitments and Incremental Term Loans, with the covenants contained in Section 6.10 and Section 6.11 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries; (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 (yiv) such other terms Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Borrower Administrative Agent and the Administrative Agent; provided that with respect to Incremental Term Loans, the interest rates and amortization schedule shall (subject to the following criteriarequirements set forth in Section 2.17(e); (v) be determined by the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (vi) the Borrower and the its Affiliates shall not be permitted to commit to or participate in any Incremental Term Lenders providing such Commitments or make any Incremental Term Loans and, and (vii) if the initial yield (as determined by Applicable Margin for any Incremental Term Loan exceeds the Administrative Agent as set forth below) on then applicable Applicable Margin for the Other Term Loans exceeds Revolving Facility by more than 50 basis points (the amount excess of (A) such excess above Applicable Margin for the Incremental Term Loans over (B) the Applicable Margin for the Revolving Facility plus 50 basis points being herein referred to as the relevant “Yield Margin 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 each Applicable Margin then in effect for outstanding Term Loans the Revolving Facility for each adversely affected existing Revolving Facility Commitment shall automatically be increased by the Yield Differential, Margin 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 LoansLoan. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Assumption AgreementCommitments as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments and the Incremental Term Loan Commitments Loans evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by thereby, and the Administrative Agent, the Collateral Agent with and the Borrower’s consent (not Borrower may revise this Agreement to be unreasonably withheld) and furnished to the other parties hereto, it being understood that evidence such Incremental Assumption Agreement may, amendments without the consent of the other Lenders, effect any Lender that is not providing such amendments to this Agreement Incremental Commitments or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 fourLoans.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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 Credit Commitments, as applicable, (iii) no Default or Event 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 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
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Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility 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 Commitments Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $10.0 million and a minimum amount of $50,000,000 or, if less, 50.0 million or equal to the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) 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, whether such Incremental Term Loan Commitments are to be Term B ▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇-▇ Loan Commitments, Revolving Credit Term B-3 Loan Commitments or commitments to make term loans with pricing interests rates and/or amortization and/or maturity and/or other terms different from the Term B B-1 Loans, Term B-2 Loans or Term B-3 Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental 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 provided, that (i) Revolving Credit 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 pricinginterest rates, amortization and final maturity datedate (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (x) the same terms as the Term B B-1 Loans, Term B-2 Loans or Term B-3 Loans, as applicable, 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, (Bii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date and Date, (Ciii) the Weighted Average Life weighted average life to Maturity maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term B B-1 Loans, Term B-2 Loans or Term B-3 Loans and (iv) any Incremental Revolving Loan Commitment shall be a Revolving Loan Commitment with the same terms as the Revolving Facility Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 10.019.08(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, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 or Incremental Revolving Facility Commitment shall become effective under this Section 2.12 2.21 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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 Credit Commitments, as applicable, (iii) no Default or Event of Default shall have occurred and be Continuing continuing or would result therefrom, (ivii) the Senior Secured Leverage Ratio (as established pursuant Borrower shall be in Pro Forma Compliance after giving effect to a certificate of an Authorized Officer such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the Borrower showing the Senior Secured Leverage Ratio determined in accordance with Section 7.07 proceeds therefrom as of the last day of the Fiscal Quarter most recently ended for which the financial statements required by Section 6.01(aif made and applied on such date and (iii) 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 any Loans under such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments on the date of such effectiveness such Loans shall constitute Obligations that are secured by the Collateral and Incremental Commitments) is equal to or less than 3.00:1.00 (assuming such incurrence shall not result in a reduction in the case outstanding amount 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) Obligations that are due permitted to be secured by the Collateral without equally and payable on or before the Increased Amount Dateratably securing any Retained Notes.
(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 B-1 Loans, Term B-2 Loans or Term B-3 Loans, when originally made, are included in each Borrowing of outstanding Term B B-1 Loans, Term B-2 Loans or Term B-3 Loans, as applicable, 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-pro rata basis. The Borrower agrees that Section 3.05 2.16 shall not apply to any conversion of Eurodollar Rate Eurocurrency Loans to Base Rate ABR 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
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Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to timetime after the Escrow Release Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility 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; provided that no such existing Lender shall be obligated to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $5.0 million and a minimum amount of $50,000,000 or, if less, 10.0 million or equal to the remaining Incremental Amount, and Amount or in integral multiples of $10,000,000 in excess thereofeach case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”) and ), (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 Loan Commitments, Revolving Credit Commitments 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 junior ranking as to security 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 are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental 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 provided, that
(i) Revolving Credit 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 amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (x) the same terms as the Term B Loans Loans, as applicable, 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 criteriaii) 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 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (the amount of provided, that if such excess above 50 basis points being herein referred to as the “Yield Differential”) the interest rate margins then in effect for outstanding Other Term Loans rank junior in right of security with the Term B Loans, (which shall be calculated to be the sum of (Ix) 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 other Term Loans shall automatically be increased by established as a separate facility from the Yield DifferentialTerm B Facility, effective upon the making of the Incremental (y) such Other Term Loans under shall be subject to a Permitted Junior Intercreditor Agreement and (z), for the Incremental Term Loan Commitmentavoidance of doubt, shall not be subject to clause (Bviii) below),
(iii) the final maturity date of any Other Term Loans shall be no earlier than the latest Term B Facility Maturity Date and in effect on the date of incurrence,
(Civ) the Weighted Average Life weighted average life to Maturity maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term B Loans,
(v) except as to pricing, amortization, final maturity date and participation in mandatory prepayments (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 (x) substantially the same terms as the Initial Revolving Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu in right of security with 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 prior to the eighteenth month anniversary of the Escrow Release Date that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent 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, and
(A) the Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) the Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 10.019.08(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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) 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, no Default or Event of Default shall have occurred and be continuing or would result therefrom or (ii) in the case of an Incremental Term Loan Commitment or Incremental Revolving Facility Commitment incurred in connection with a Permitted Business Acquisition or another Investment permitted hereunder, on the date of such effectiveness, no Event of Default under Section 7.01(b), (c), (h) or (i) 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. 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 2.11(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 after the Escrow Release Date 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, 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. 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”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) 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 and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such . If provided in any Incremental Assumption Agreement maywith respect to any Extended Revolving Facility Commitments, without and with the consent of the other Lenderseach L/C Issuer, effect participations in Letters of Credit shall be reallocated to lenders holding such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, Extended Revolving Facility Commitments in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 manner specified in such Incremental Term Loans on the date such Incremental Term Loans are made would exceed the Adjusted 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) 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 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 including upon effectiveness of such Extended Revolving Credit Commitments, as applicable, (iii) no Default Facility Commitment or Event of Default shall have occurred and be Continuing upon 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 maturity date for any Class of Incremental Loans and Incremental Revolving Facility 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.
(dg) Each Upon the effectiveness of any such Extension, the parties hereto hereby agrees that the Administrative Agent may take any and all action as may applicable Extending Lender’s Term Loan will be reasonably necessary to ensure that all Incremental Loans (other than Other automatically designated an Extended 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 basisLoan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. 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 For purposes of this Agreement and the other Loan Documents, (iii) shall haveif such Extending Lender is extending a Term Loan, as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) shall make such Extending Lender will be deemed to have an Incremental Term Loan or provide having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Credit Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment Increase having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the Borrower contrary set forth in a principal this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount equal to such of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental CommitmentAmount, and such Incremental (ii) no Extended Term Loan or Incremental Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitment 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 and/or Extended Revolving Facility Commitment), (iv) there shall be a “Loan” no condition to any Extension of any Loan or “Commitment” for Commitment 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 or Extended Revolving Facility Commitment implemented thereby and (v) all purposes Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Loan Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents.
(e) 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 Documents that are secured by the Collateral on a portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.pari passu basis
Appears in 1 contract
Sources: First Lien Credit Agreement (Caesars Acquisition Co)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent Agent, at any time and from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender; provided that no such existing Lender shall be obligated to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion. Such Any such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $5.0 million and a minimum amount of $50,000,000 or, if less, 5.0 million or equal to the remaining Incremental Amountamount available pursuant to the foregoing sentence, and in integral multiples of $10,000,000 in excess thereofas applicable, or such lesser amount as approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the any such date, an “Increased Amount Date”) and ), (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization 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 are to be Revolving Facility Commitments or commitments to make revolving loans with pricing and/or fees and/or maturity and/or other terms different from Revolving Loans under the Revolving Facility Commitments (“Other Revolving Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental 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) Revolving Credit Commitment Increases shall have the same terms except as the existing Revolving Credit Commitments under this Agreementto pricing, amortization, participation in mandatory prepayments and final maturity date (which shall, subject to clause (ii) with respect to and (iii) of this proviso, be determined by the Borrower and the Incremental Term LoansLenders in their sole discretion), (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) substantially the same terms as the Term B Loans Loans, as applicable, 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, (Bii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date and Date, (Ciii) the Weighted Average Life weighted average life to Maturity maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to maturity of the Term B Loans, (iv) except as to pricing, participation in mandatory prepayments and commitment reductions, and final maturity date (which shall, subject to clause (v) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) substantially the same terms as the Revolving Facility Loans under the Revolving Facility Commitments or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date applicable to Revolving Facility Commitments and (vi) any Incremental Revolving Facility Lender shall be reasonably satisfactory to the Borrower and the Administrative Agent; provided further that the Yield in respect of any Other Term Loan incurred prior to the date that is eighteen (18) months after the Closing Date may not exceed the Yield for the Term B Loans by more than 1/2 of 1% or if it does so exceed such Yield, the Applicable Margin for the Term B Loans shall be increased so that the Yield in respect of such Other Term Loan incurred prior to the date that is eighteen (18) months after the Closing Date is no more than 1/2 of 1% higher than the Yield for the Term B Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 10.019.08(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, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 or Incremental Revolving Facility Commitment shall become effective under this Section 2.12 2.21 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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 Credit Commitments, as applicable, (iii) no Default or Event of Default shall have occurred and be Continuing continuing or would result therefromtherefrom and (ii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, (iii) the condition set forth in Section 4.01(b) shall have been satisfied, and (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 delivered or caused to the Administrative Agentbe delivered such officer’s certificate, for the account of legal opinions, board resolutions, secretary’s certificates or other similar documents reasonably requested by the Administrative Agent and the Lenders (including in connection with 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 Datetransaction.
(d) Incremental Term Loans and Incremental Revolving Facility Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations under this Agreement and the other Loan Documents. 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 Loans, as applicable, on a pro-pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments with respect to any Revolving Facility, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans under such Revolving Facility on a pro rata basis. The Borrower agrees that Section 3.05 2.16 shall not apply to any conversion of Eurodollar Rate Eurocurrency Loans to Base Rate ABR 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or additional Revolving Credit Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders or persons who will become Revolving Credit Lenders (which may include any existing Lender); provided that no each such existing Lender person shall be obligated subject to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments in their own discretionthe approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or additional Revolving Credit Commitments being requested (which, for which (i) in the case of Incremental Commitments comprised of Term B Loan Commitments and Other Term LoansCommitments, shall be in minimum amount principal amounts of $50,000,000 20,000,000 or, if lesslower, equal to the remaining Incremental Amount, and (ii) in integral multiples the case of additional Revolving Credit Commitments, shall be in minimum principal amounts of $10,000,000 in excess thereof5,000,000 or, if lower, equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or additional Revolving Credit 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), and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to be make additional Term B Loan Commitments, Revolving Credit Commitments Loans or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or additional Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the applicable Incremental CommitmentsTerm Loans to be made thereunder; provided that that, without the prior written consent of the Required Lenders, (i) Revolving Credit 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 or junior 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, and (except as to pricing, amortization pricing and final maturity date, amortization) shall have (x) the same terms as the Term B Loans, (ii) the final maturity date of any Other Term Loans or (y) such other terms as shall be reasonably satisfactory no earlier than the Term Loan Maturity Date, (iii) the weighted average life 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 maturity of any Other Term Loans and, 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 determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as set forth below) on a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being herein referred to herein 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 Percentage 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)Loans, then the Applicable Margin Percentage 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 Loans. The Administrative Agent shall be no earlier than promptly notify each Lender as to the Term B Facility Maturity Date and (C) the Weighted Average Life to Maturity effectiveness of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loanseach Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or additional Revolving Credit Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 fourthereby.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or additional Revolving Credit Commitment shall become effective under this Section 2.12 2.24 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 5.01(b) 4.01 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 a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary received legal opinions, board resolutions and other customary closing certificates and documentation as required reasonably requested by the relevant Incremental Assumption Agreement Administrative Agent and consistent with those delivered on the Closing Date under Section 5.02 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security DocumentsDocuments and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans, and/or additional Revolving 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 Loans and (iii) the Borrower would be in pro forma compliance with Section 6.02(a) and (b) after giving effect to (x) in the case of Incremental Term Loan Commitments, the Incremental Term Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, and (y) in the case of additional Revolving Credit Commitments, as applicable, the Revolving Loans (iiiif any) no Default or Event to be made thereunder on the date of Default shall have occurred effectiveness of such Commitment and be Continuing or would result therefrom, (iv) the Senior Secured Leverage Ratio (as established pursuant to a certificate of an Authorized Officer application 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 proceeds therefrom on 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 Datedate.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans, and/or additional Revolving 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 or Revolving Loans on a pro-pro rata basis. Section 3.05 shall not apply This may be accomplished by requiring each outstanding Eurodollar Term Borrowing 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 be converted into 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 ABR 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) if, 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. 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 the interest rate thereon for such Revolving Credit Commitment IncreaseInterest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, there to the extent any Incremental Term Loans are any Revolving Credit Loans outstandingnot Other Term Loans, the Administrative Agent shall take those steps which it deems, in its sole discretion necessary and appropriate scheduled amortization payments under Section 2.11(a)(i) required to result in each Revolving Credit Lender having a pro-rata share of be made after the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increase; provided that any prepayment made in connection with the taking making of such steps Incremental Term Loans shall be accompanied ratably increased 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentenceaggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (CGG Veritas)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed the Incremental Term Loan Amount from one or more Incremental Lenders Term Loan Lenders, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which may include any existing Lender; provided that no such existing Lender acceptance shall not be obligated unreasonably withheld or delayed) to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments in their own discretionthe Agent. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $1,000,000 and a minimum amount of $50,000,000 or, if less, 5,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental 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), and (iii) whether such Incremental Term Loan Commitments are commitments to be make additional Term B Loan Commitments, Revolving Credit Commitments Loans or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
. The Borrower may, by written notice to the Agent from time to time, request additional Revolving Loan Commitments in an amount not to exceed the Additional Revolving Loan Commitment Amount from one or more Persons, each of which must be (bi) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall not be unreasonably withheld or delayed) to the Agent and each L/C Issuer. Such notice shall set forth (i) the amount of the additional Revolving Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Additional Revolving Loan Commitment Amount) and (ii) the date on which such additional Revolving Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice). The Borrower will first seek additional Revolving Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, if additional commitments are needed, from additional banks, financial institutions and other institutional lenders who will become Revolving Lenders in connection therewith. The Borrower and each Incremental Lender Person providing an additional Revolving Loan Commitment shall execute and deliver to the Administrative Agent an Incremental Additional Revolving Loan Commitment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the additional Revolving Loan Commitment of each such Person. The terms and provisions (including pricing and maturity date) of such additional Revolving Loan Commitments and Revolving Loans made under such additional Revolving Loan Commitments shall be substantially similar to those of the existing Revolving Loan Commitments and Revolving Loans, respectively.
(b) The Borrower will first seek Incremental Term Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, if additional commitments are needed, from additional banks, financial institutions and other institutional lenders who will become Incremental Term Loan Lenders in connection therewith. The Borrower and each Incremental Term Loan Lender shall execute and deliver to the Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such each Incremental Term Loan Lender. Each Incremental Assumption Agreement shall specify the The terms and provisions of the applicable Incremental Commitments; provided that Term Loans shall be substantially consistent to those of the Term Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) Revolving Credit Commitment Increases the final maturity date of any Other Term Loans shall have be no earlier than the same terms as the existing Revolving Credit Commitments under this AgreementTerm Loan Maturity Date, (ii) with respect the average life to Incremental Term Loans, (A) maturity of the Other Term Loans shall rank pari passu in right be no shorter than the average life to maturity 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 (xiii) 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 on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the LIBOR based interest rate on such Other Term Loans and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee (excluding any arrangement, structuring and underwriting fees paid or payable to any arranger or its Affiliates) directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as set forth below) on a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds the Applicable Margin then in effect for LIBOR Rate Loans that are Term Loans, Revolving Loans or prior Other Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being herein referred to herein 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 such Term Loans, Revolving Loans and prior Other Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Other Term Loans under Loans. The Agent shall promptly notify each Lender as to the effectiveness of each 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 Assumption Agreement 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 Loanseach Additional Revolving Loan Commitment Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Additional Revolving Loan Commitment Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) Commitment 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. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the interest rate margin above the Adjusted Eurodollar Rate for loans under the Incremental Term Loans evidenced thereby or the additional Revolving Loan Commitment that bear interest based on and additional Revolving Loans evidenced thereby, as applicable, and 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 effect for a three month Interest Period commencing on such date) Agent 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 may revise this Agreement to evidence 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 fouramendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or additional Revolving Loan Commitment shall become effective under this Section 2.12 1.12 unless (i) on the date of such effectiveness, the conditions set forth in paragraph (b) of Section 5.01(b) 2.2 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 a Responsible Officer of the Borrower, (ii) except as otherwise specified in the Administrative applicable Incremental Term Loan Assumption Agreement or Additional Revolving Loan Commitment Assumption Agreement, the Agent shall have received, to the extent required by the Administrative Agent, customary received legal opinions, board resolutions and other customary closing certificates and documentation as required reasonably requested by the relevant Incremental Assumption Agreement Agent and consistent with those delivered on the Closing Date under Section 5.02 and such additional customary documents and filings 2.1, (including amendments to the Security Documentsiii) 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 Credit Commitmentsafter giving effect, as applicable, to such Incremental Term Loan Commitment and the Incremental Term Loans to be made thereunder or such additional Revolving Loan Commitment and the Revolving Loans to be made thereunder (iii) no Default or Event assuming the entire amount of Default shall have occurred such additional Revolving Loan Commitment is funded), and be Continuing or would result in each case, the application of the proceeds therefrom, (ivx) the Senior Secured Leverage Ratio (as established pursuant to shall, on a certificate of an Authorized Officer of the Borrower showing the Senior Secured Leverage Ratio determined in accordance with Section 7.07 pro forma basis as of the last day of the last Fiscal Quarter most recently ended for which the financial statements are required to be delivered hereunder, not exceed the maximum Senior Leverage Ratio then permitted under Section 6.2 less 0.25:1.00 and (iv) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages as security for the Obligations, as determined by the Agent in its reasonable discretion (x) the applicable Credit Party to any Mortgages shall have entered into, and delivered to the Agent, at the direction and in the sole discretion of the Agent a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Agent, (y) the Borrower shall have caused to be delivered to the Agent for the benefit of the Secured Parties an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Agent insuring that the priority of the Lien of the Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the Mortgages (other than those expressly permitted 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 drawn5.1) and (vz) there the Borrower shall have been paid delivered, at the request of the Agent, to the Administrative Agent, Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of the Mortgages as security 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 DateObligations.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may may, in consultation with the Borrower, 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-pro rata basis. Section 3.05 shall not apply This may be accomplished by requiring each outstanding Borrowing of LIBOR Rate Loans that are Term Loans to any be converted into a Borrowing of Base Rate Loans that are Term Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding Borrowing of LIBOR Rate Loans that are Term Loans on a pro rata basis. Any conversion of Eurodollar LIBOR Rate Loans that are Term Loans to Base Rate Loans reasonably that are Term Loans required by the Administrative Agent preceding sentence shall be subject to effect Section 10.4. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Rate Loans that are Term Loans, then the foregoing. On each Increased Amount Date, each Lender which is providing an Incremental Commitment (i) shall become a “Lender” interest rate thereon for all purposes of this Agreement such Interest Period and the other Loan Documents, (ii) economic consequences thereof shall have, be as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) shall make an set forth in the applicable Incremental Term Loan or provide a Revolving Credit Commitment Increase Assumption Agreement. In addition, to the Borrower in a extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 1.8(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount equal to of such Incremental Commitment, Term Loans and such Incremental Loan or Incremental Commitment shall be a “Loan” or “Commitment” further increased for all purposes Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Loan Lenders were entitled before such recalculation. Each of this Agreement the parties hereto hereby agrees that the Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that, upon the other effectiveness of each additional Revolving Loan Documents.
(e) Upon each Revolving Credit Commitment Increase pursuant to this SectionCommitment, (i) each Revolving Credit Lender immediately prior to Loans made under such increase will automatically and without further act be deemed to have assigned to each existing additional Revolving Credit Lender, if any, and each Incremental Lender, if any, Loan Commitment are included in each case providing Borrowing of outstanding Revolving Loans on a portion of such Revolving Credit Commitment Increase pro rata basis and (ii) if, on the date of such Lender providing each additional Revolving Credit Loan Commitment Increase, there are any shares ratably in the aggregate Revolving Credit Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion necessary and appropriate to result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentencePro Rata Outstandings.
Appears in 1 contract
Sources: Credit Agreement (Metropolitan Health Networks Inc)
Incremental Commitments. (a) The Borrower mayCompany 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 that (i) Incremental Revolving Commitments and/or (ii) Incremental Term Commitments be established, in each case by an amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lenderless than $25,000,000; provided that no such existing Lender shall be obligated to provide any such the aggregate amount of all Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments in their own discretionestablished hereunder during the term of this Agreement shall not exceed $200,000,000. Such notice shall set forth (i) the amount of the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Revolving 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, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (iiiB) whether any Person that the Company proposes to become an Incremental Lender, if such Person is not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in the case of any proposed Incremental Commitments are to Revolving Lender, the Issuing Bank and the Swingline Lender (which approval shall not be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”unreasonably withheld).
(b) . The Borrower Company and each Incremental 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 Commitment of such Incremental LenderLender 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. Each The terms and conditions of any Incremental Assumption Agreement Term Commitments and the Incremental Term Loans to be made thereunder shall specify the terms of be, except as otherwise set forth herein or in the applicable Incremental CommitmentsCommitment Agreement, identical to those of the Term Commitments and the Term Loans; provided that (i) Revolving Credit 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 weighted average 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 Incremental Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Terms Loans and (ii) no Incremental Term B LoansLoan shall mature prior to the Maturity Date. Each 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 parties hereto hereby agrees that, upon the effectiveness effective date of any Incremental Assumption AgreementRevolving Commitments (the “Incremental Revolving Commitment Effective Date”), this Agreement (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 amended deemed to be paid, (ii) each Incremental Revolving Lender that shall have been a Revolving Lender prior to the extent (but only Incremental Revolving Commitment Effective Date shall pay to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with in same day funds an amount equal to the Borrowerdifference between (A) the product of (1) such Lender’s consent Applicable Percentage (not calculated after giving effect to be unreasonably withheldthe Incremental Revolving Commitments), multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and furnished (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the other parties heretoIncremental Revolving Commitments), it being understood 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 Assumption Agreement may, without Revolving Lender’s Applicable Percentage (calculated after giving effect to the consent Incremental Revolving Commitments) multiplied by (2) the amount of the other LendersSubsequent Borrowings, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of (iv) after the Administrative Agent, to effect Agent receives 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 funds specified in clauses (ii)(Aii) and (iii) above, the initial yield on any Administrative Agent shall pay to each Revolving Lender that is not an Incremental Term Loan Commitment 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 determined by 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 be equal hold its Applicable Percentage of each Subsequent Borrowing (calculated after giving effect to the sum of Incremental Revolving Commitments) and (xvii) the Company shall pay each Revolving Lender any and all accrued but unpaid interest rate margin 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 Adjusted Eurodollar Rate for loans under Company pursuant to the provisions of Section 2.16 if the Incremental Term Loan Revolving Commitment that bear interest based Effective Date occurs other than on the Adjusted Eurodollar Rate (which 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 increased outstanding, the amounts payable by the amount that any “Eurodollar floor” applicable Revolving Lenders pursuant to such 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 Term Loans Revolving Commitment Effective Date.
(d) Incremental Commitments established pursuant to this Section shall become effective on the date such Incremental Term Loans are made would exceed specified in the Adjusted Eurodollar Rate that would be in effect for a three month Interest Period commencing on such datenotice delivered by the Company pursuant to the second sentence of paragraph (a) 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 fourabove.
(ce) Notwithstanding the foregoing, no Incremental Term Loan Commitment Commitments shall become effective under this Section 2.12 unless unless, (i) on the date of such effectivenesseffectiveness thereof, the conditions set forth in paragraphs (a) and (b) of Section 5.01(b) 4.02 shall be satisfied (without giving effect to the phrase “As of the date hereof,” in Section 3.06 or waived 3.07(b)) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer the chief financial officer of the BorrowerCompany, and (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 received documents consistent with those delivered on the Closing Date under clauses (b) and (c) of Section 5.02 and such additional customary documents and filings (including amendments 4.01 as to the Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Loans corporate power 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 Credit Commitments, as applicable, (iii) no Default or Event 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 authority 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 Company to be) delivered immediately prior to and borrow hereunder after giving effect to such Incremental Commitment. Each Incremental Commitment Agreement may, without the incurrence consent of any Lender other than the applicable Incremental Loans Lenders, effect, by amendment or amendment and Incremental Commitments) is equal restatement, such mechanical amendments (which shall not include amendments 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 drawnwaivers under Articles V, VI or VII) 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 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 DocumentsDocuments (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 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, as applicable, have been obtained).
(f) Upon the effectiveness of an Incremental Commitment which of any Incremental Lender, (i) such Incremental Lender shall become be deemed to be a “CommitmentsLender” (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 (iiiii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall make 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 Loan or provide Commitment shall make a Revolving Credit Commitment Increase loan to the Borrower Company in a principal an amount equal to such Incremental Commitment, and Term Commitment on the date specified in such Incremental Loan or Incremental Commitment shall be a “Loan” or “Commitment” for all purposes of this Agreement and the other Loan DocumentsAgreement.
(eh) Upon each Revolving Credit Commitment Increase pursuant The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to this Section, (iin Section 2.10(a) 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 of the effectiveness of any Incremental Lender, if anyCommitments, in each case providing a portion advising the Lenders of such Revolving Credit the details thereof (including each amendment effected pursuant to an Incremental Commitment Increase and (iiAgreement) 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 deemsand, in its sole discretion necessary and appropriate to result in each the case of effectiveness of any Incremental Revolving Credit Lender having a pro-rata share Commitments, of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share Applicable Percentages of the revolving Credit Commitments immediately Revolving Lenders 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentencethereto.
Appears in 1 contract
Sources: Credit Agreement (Waters Corp /De/)
Incremental Commitments. (a) Immediately upon the effectiveness of this Amendment, the Revolving Commitments shall be increased to an aggregate principal amount of $125,000,000 and all references to the Revolving Commitments and to the maximum principal amount of the Revolving Loans in the Existing Documents shall be amended accordingly. Upon the effectiveness of this Amendment, the "Revolving Commitments", "Revolving Exposure", and "Revolving Facility", each as defined in the Credit Agreement, shall include the Incremental Commitment, and each reference to “Revolving Loans” in the Loan Documents shall be deemed to include any Incremental Facility extended under the Incremental Commitment. Schedule 2.1 to the Credit Agreement is hereby amended and restated in its entirety to reflect the updated aggregate Revolving Commitment amount, and the updated Applicable Percentages of the Lenders. In connection with the execution of this Amendment, Citizens Bank, N.A. (the “Existing Modifying Lender”) shall receive a Revolving Loan Note based on the Incremental Commitment (the “Incremental Commitment Note”), which Incremental Commitment Note shall constitute a Revolving Loan Note under the Credit Agreement and the other Loan Documents and shall supplement Existing Modifying Lender’s existing Revolving Loan Note (the “Existing Note”) and shall not be a novation. Any and all references in the Credit Agreement and the Other Loan Documents to the Note(s) and/or Revolving Loan Note(s) of such Existing Modifying Lender shall hereafter refer to both the Incremental Commitment Note and the Existing Note.
(b) The first sentence of Section 2.11(a) of the Credit Agreement is hereby amended, restated, and replaced in its entirety with the following: “The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request additional Revolving Commitments (collectively, “Incremental Commitments in an amount not to exceed the Incremental Amount Commitments”), from one or more Incremental Lenders (which may include any existing Lenderin the sole discretion of such Lenders) or Eligible Assignees who will become Lenders, by an aggregate principal amount of up to Seventy-Five Million and 00/100 Dollars ($75,000,000.00), so long as, after giving effect thereto, the aggregate amount of the Revolving Commitments hereunder does not exceed Two Hundred Million and 00/100 Dollars ($200,000,000.00); provided that no such existing Lender shall be obligated to provide any at the time of the incurrence of such Incremental Commitments unless it so agrees) willing and immediately after giving effect thereto and to provide such Incremental Commitments in their own discretion. Such notice shall set forth (i) the amount use of the Incremental Commitments being requested proceeds thereof (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, assuming the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess full utilization thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) and (iii) whether such Incremental Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving Credit 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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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) 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 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 Credit Commitments, as applicable, (iii) no Default or Event of Material Default shall have occurred and be Continuing continuing or would result therefrom, and (ivB) the Senior Secured Consolidated Total Leverage Ratio shall be less than or equal to sixty percent (as established pursuant to 60%); provided, further, that each such Person, if not already 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)Lender hereunder, as the case may be, have been (or were required to be) delivered immediately prior to and after giving effect shall be subject 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 approval 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)and, 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 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increase; provided that any prepayment made in connection with any additional Revolving Commitment, 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement L/C Issuer (which approvals shall not apply to any transaction that may be effected pursuant to the immediately preceding sentenceunreasonably conditioned, withheld or delayed).”
Appears in 1 contract
Sources: Credit Agreement (Cantor Fitzgerald Income Trust, Inc.)
Incremental Commitments. (a) The Borrower maymay at any time or from time to time after the Closing Date, by written notice to the Administrative Agent from time (whereupon the Administrative Agent shall promptly deliver a copy to timeeach of the Lenders), request Incremental Commitments in an amount not to exceed the Incremental Amount from one or more Incremental 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 Commitments increases in their own discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) and (iii) whether such Incremental Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (each such increase, a “Other Term LoansRevolving Commitment Increase”).
(b) The Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving Credit Commitment Increases shall have both at 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 time of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date such request 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, upon the effectiveness of any Incremental Assumption AgreementAmendment referred to below, this Agreement no Default or Event of Default shall exist. Each Revolving Commitment Increase shall be amended in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the extent (but only contrary herein, the aggregate amount of the Revolving Commitment Increases shall not exceed $150,000,000. Each notice from the Borrower pursuant to this Section shall set forth the extent) necessary to reflect the existence requested amount and proposed terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01relevant Revolving Commitment Increases. Any such deemed amendment Revolving Commitment Increases may be memorialized in writing provided by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that each of the Administrative Agent with the Borrower’s and each Issuing Bank shall have consented (such consent (not to be unreasonably withheld) and furnished to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent would be required under Section 9.04(b) for an assignment of Commitments to such Lender or Additional Lender. Commitments in respect of Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other parties heretoLoan Documents, it being understood that executed by, and in form and substance reasonably satisfactory to, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Assumption Agreement Amendment may, without the consent of the any other Lenders, effect such amendments to this Agreement or any and the other Loan Document Documents as may be necessary or appropriate, in the opinion reasonable judgment of the Administrative Agent, to effect the provisions of this Section 2.12Section. This Section 2.12 The effectiveness of any Incremental Amendment shall supersede any provision of Section 2.11 or Section 10.01 be subject to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 satisfaction on the date such Incremental Term Loans are made would exceed the Adjusted 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 thereof of such discount or fee, expressed as a percentage each of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be satisfied or waived and deemed to refer to the effective date of such Incremental Amendment), the receipt by 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 reasonably requested by the relevant Incremental Assumption Agreement Administrative Agent and consistent with those delivered on the Closing Date under Section 5.02 4.01 and such additional customary documents and filings (including amendments other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Loans made pursuant to the Security Documents) as the Administrative Agent may reasonably require Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated 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 provide any Revolving Commitment Increases unless it so agrees. Upon each increase in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Credit Commitments, as applicable, (iii) no Default or Event 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 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.
(e) Upon each Revolving Credit Commitment Increase Commitments 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 Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Protective Advances such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations in Protective Advances held by each Lender (including each such Revolving Commitment Increase Lender) will equal such Lender’s Applicable Percentage and (b) if, on the date of such Revolving Credit Commitment Increaseincrease, 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share Loans shall on effectiveness of the revolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increase; provided that any Increase be prepaid from the proceeds of additional Loans made hereunder (reflecting such increase in Commitments), which 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 3.052.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-pro rata borrowing and pro-pro rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, from time to time in connection with the financing of a Permitted Acquisition (which shall include all related fees and expenses thereof), by written notice to the Administrative Agent from time to timeAgent, request Incremental Commitments in an amount not to exceed the Incremental Loan Amount from one or more Incremental Lenders (Lenders, which may include any existing Lender; provided that no such existing each Incremental Lender, if not already a Lender or an Affiliate of a Lender hereunder, shall be obligated subject to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments in their own discretionthe approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of US$5,000,000 and a minimum amount of $50,000,000 or, if less, US$10,000,000 or equal to the remaining Incremental Loan Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 calendar days after the “Increased Amount Date”) and date of such notice), (iii) whether such Incremental Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“"Other Term Loans”)") and (iv) a description in detail reasonably satisfactory to the Administrative Agent of the related Permitted Acquisition.
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Loan Assumption Agreement shall specify the terms of the applicable Incremental CommitmentsLoans to be made thereunder; provided that that, without the prior written consent of the Required Lenders, (i) Revolving Credit 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 in respect of any Incremental Loans (as conclusively determined by the Administrative Agent as set forth belowat the time of the execution and delivery of an Incremental Loan Assumption Agreement) on the Other Term Loans exceeds shall not exceed by more than 50 25 basis points (the amount of such excess above 50 basis points being herein referred to as then current yield on 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 CommitmentLoans, (Bii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (Ciii) the Weighted Average Life average life to Maturity maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life average life to Maturity maturity of the Term B Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments Commitment evidenced thereby as provided for in Section 10.01thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s '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. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 2.22 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(bparagraphs (b) and (c) of Article IV 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 a Financial Officer of the Borrower, Borrower and (ii) the Administrative Agent shall have received, to received (with sufficient copies for each of the extent required Incremental Lenders) closing certificates and documentation reasonably specified 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 Credit Commitments, as applicable, (iii) no Default or Event 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 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Sources: Credit Agreement (Burns Philp Netherlands European Holdings Bv)
Incremental Commitments. (a) The Borrower Representative may, by written notice to the Administrative Agent on behalf of any Borrower, at any time or from time to timetime after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request (i) one or more new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (ii) one or more increases in the amount of the Revolving Commitments (a “Revolving Commitment Increase”) or a new Class of Revolving Commitments (collectively with any Revolving Commitment Increase, the “Incremental Revolving Credit Commitments”, and, collectively with any Incremental Term Commitments, the “Incremental Commitments”), in an aggregate principal amount not to exceed the Incremental Amount from one or more Incremental 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 Commitments in their own discretion. Such notice shall set forth (i) the amount sum of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) and (iii) whether such Incremental Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving Credit 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 greater of payment (1) $178,800,000 and (2) 100% of security with Consolidated Adjusted EBITDA for the most recently completed Test Period (including being guaranteed by the same Guarantors and being secured calculated on a pari passu basis by Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the same Collateral asamount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the Term B Loans and“Fixed Incremental Amount”) plus (B) an unlimited amount (the “Incremental Incurrence-Based Amount”), except so long 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 on a Pro Forma Basis after giving effect to the Borrower and incurrence of any such Incremental Loans (assuming the Administrative Agent; provided that with respect to Incremental Term Loans, full amount of any such Indebtedness in the interest rates and amortization schedule shall form of a revolving credit facility is drawn) (subject to without netting the following criteria) be determined by the Borrower and the Incremental Term Lenders providing cash proceeds of any borrowing under any such Incremental Term Loans and, if or Incremental Revolving Credit Commitment not promptly applied for 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 specified transaction in connection with such excess above 50 basis points being herein referred to as the “Yield Differential”) the interest rate margins then incurrence upon receipt thereof 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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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”calculation thereof), the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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 Credit Commitments, as applicable, (iii) no Default or Event of Default shall have occurred and be Continuing or would result therefrom, (iv) the Senior Secured Total Net 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 does not exceed 4.50:1.00 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 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.completed Test
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or additional Revolving Credit Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders or persons who will become Revolving Credit Lenders (which may include any existing Lender); provided that no each such existing Lender person shall be obligated subject to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments in their own discretionthe approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or additional Revolving Credit Commitments being requested (which, for which (i) in the case of Incremental Commitments comprised of Term B Loan Commitments and Other Term LoansCommitments, shall be in minimum amount principal amounts of $50,000,000 20,000,000 or, if lesslower, equal to the remaining Incremental Amount, and (ii) in integral multiples the case of additional Revolving Credit Commitments, shall be in minimum principal amounts of $10,000,000 in excess thereof5,000,000 or, if lower, equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or additional Revolving Credit 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), and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to be make additional Tranche B-2 Term B Loan Commitments, Revolving Credit Commitments Loans or commitments to make term loans with pricing and/or amortization terms different from the Tranche B-2 Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or additional Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the applicable Incremental CommitmentsTerm Loans to be made thereunder; provided that that, without the prior written consent of the Majority Lenders, (i) Revolving Credit 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 or junior 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, and (except as to pricing, amortization pricing and final maturity date, amortization) shall have (x) the same terms as the Term B Loans, (ii) the final maturity date of any Other Term Loans or (y) such other terms as shall be reasonably satisfactory no earlier than the Tranche B-2 Term Loan Maturity Date, (iii) the weighted average life 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 maturity of any Other Term Loans and, shall be no shorter than the weighted average life to maturity of the Tranche B-2 Term Loans and (iv) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as set forth below) on a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being herein referred to herein 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 Percentage 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)of any Class, then the Applicable Margin Percentage then in effect for outstanding Term Loans of such Class 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 Loans. The Administrative Agent shall be no earlier than promptly notify each Lender as to the Term B Facility Maturity Date and (C) the Weighted Average Life to Maturity effectiveness of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loanseach Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or additional Revolving Credit Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 fourthereby.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or additional Revolving Credit Commitment shall become effective under this Section 2.12 2.24 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(bparagraphs (b) and (c) of Article IV 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 a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary received legal opinions, board resolutions and other customary closing certificates and documentation as required reasonably requested by the relevant Incremental Assumption Agreement Administrative Agent and consistent with those delivered on the Closing Restatement Effective Date under Section 5.02 the Amendment Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security DocumentsDocuments and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans, and/or additional Revolving 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 Loans and (iii) the Borrower would be in pro forma compliance with Section 6.02(a) and (b) after giving effect to (x) in the case of Incremental Term Loan Commitments, the Incremental Term Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, and (y) in the case of additional Revolving Credit Commitments, as applicable, the Revolving Loans (iiiif any) no Default or Event to be made thereunder on the date of Default shall have occurred effectiveness of such Commitment and be Continuing or would result therefrom, (iv) the Senior Secured Leverage Ratio (as established pursuant to a certificate of an Authorized Officer application 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 proceeds therefrom on 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 Datedate.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans, and/or additional Revolving Loans (other than Other Term Loans) in the form of additional Term B Loans), when originally made, are included in each Borrowing of outstanding Tranche B-2 Term B Loans or Revolving Loans on a pro-pro rata basis. Section 3.05 shall not apply This may be accomplished by requiring each outstanding Eurodollar Term Borrowing 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 be converted into 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 ABR 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) if, 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. 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 the interest rate thereon for such Revolving Credit Commitment IncreaseInterest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, there to the extent any Incremental Term Loans are any Revolving Credit Loans outstandingnot Other Term Loans, the Administrative Agent shall take those steps which it deems, in its sole discretion necessary and appropriate scheduled amortization payments under Section 2.11(a)(i) required to result in each Revolving Credit Lender having a pro-rata share of be made after the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increase; provided that any prepayment made in connection with the taking making of such steps Incremental Term Loans shall be accompanied ratably increased 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentenceaggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (CGG Veritas)
Incremental Commitments. The US Borrower may at any time or from time to time after the Restatement Effective Date (a) The Borrower maybut prior to the Latest Maturity Date), by written notice to the Administrative Agent from time (whereupon the Administrative Agent shall promptly deliver a copy to timeeach of the Lenders) (an “Incremental Loan Request”), request Incremental Commitments in an amount not to exceed the Incremental Amount from one or more Incremental 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 Commitments in their own discretion. Such notice shall set forth (i) the establishment of one or more new term loan commitments, which may be in the same Credit Facility as any outstanding Term Loans of an existing Class of Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (ii) one or more increases in the amount of the Incremental Revolving Commitments being requested of an existing Class of Revolving Commitments (whicha “Revolving Commitment Increase”) or the establishment of one or more new revolving commitments (any such new revolving commitments, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if lesscollectively with any Revolving Commitment Increases, the remaining “Incremental AmountRevolving Commitments”; the Incremental Revolving Commitments, and in integral multiples of $10,000,000 in excess thereof)collectively with any Incremental Term Commitments, (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount DateIncremental Commitments”) and (iii) whether such Incremental Commitments are in an aggregate principal amount not to be Term B Loan Commitmentsexceed, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms any date of the applicable Incremental Commitments; provided that (i) Revolving Credit Commitment Increases shall have the same terms as the existing Revolving Credit Commitments under this Agreementdetermination, (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 (IA) $400,000,000 less the Applicable Margin then in effect for Eurodollar Rate Loans increased by the aggregate principal amount that any “Eurodollar floor” applicable of Incremental Equivalent Indebtedness incurred pursuant to clause (A) of Section 6.01(r) at or prior 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 time, 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 aggregate amount of any Other voluntary prepayments of Term Loans shall be no earlier made pursuant to Section 2.10(a) and prepayments of Revolving Loans made in connection with a permanent repayment and termination of corresponding Revolving Commitments prior to such time (in each case, other than any such voluntary prepayments made with the Term B Facility Maturity Date and proceeds of Indebtedness), less the aggregate principal amount of Incremental Equivalent Indebtedness incurred pursuant to clause (B) of Section 6.01(r) at or prior to such time, plus (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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 additional amounts so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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) long as the Administrative Agent may reasonably require to assure that the Incremental Loans and Incremental Commitments are secured by the Collateral ratably with (orConsolidated First Lien Leverage Ratio, to the extent agreed by the applicable Incremental Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Credit Commitments, as applicable, (iii) no Default or Event of Default shall have occurred and be Continuing or would result therefrom, (iv) the Senior Secured Leverage Ratio (as established pursuant to determined on a certificate of an Authorized Officer of the Borrower showing the Senior Secured Leverage Ratio determined in accordance with Section 7.07 pro forma basis 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)Test Period, as the case may be, have been (if any Incremental Term Loans 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)Loans, as applicable, all fees available under such Incremental Commitments had been outstanding on the last day of such period (but without giving effect to any amount incurred simultaneously under the immediately preceding clauses (A) and expenses (including reasonable out-of-pocket feesB)), charges and disbursements of counsel) that are due and payable on or before the Increased Amount Date.
(d) Each and, in each case, with respect to any Incremental Revolving Commitment, assuming a borrowing of the parties hereto hereby agrees maximum amount of Loans available thereunder , does not exceed 2.50:1.00; provided that, to the extent the proceeds of any Incremental Term Loans or Incremental Term Commitments are intended to be applied to finance a Limited Condition Acquisition, the Consolidated First Lien Leverage Ratio shall be tested in accordance with Section 1.08(c). Notwithstanding anything herein to the contrary, no Incremental Amendment shall increase the Dollar Equivalent of the aggregate principal amount of the Revolving Loans that the Administrative Agent may take any and all action as may be reasonably necessary made to ensure that all Incremental Loans (other than Other Term Loans1) the Canadian Borrower to an amount in the form excess 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 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 $40,000,000 and (iii2) shall make the UK Borrower to an Incremental Term Loan or provide a Revolving Credit Commitment Increase to amount in excess of $10,000,000, unless the Borrower in a nominal principal amount of the Goderich Mine Mortgage is increased by an 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.
(e) Upon each Revolving Credit Commitment Increase pursuant to this Section, (i) each Revolving Credit Lender immediately prior to such Dollar Equivalent 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 portion plus 20% of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentenceDollar Equivalent increase.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Compass Minerals International Inc)
Incremental Commitments. (a) The Borrower Company may, by written upon five (5) Business Days’ notice to the Administrative Agent from time to timeAgent, request Incremental Commitments in an increase the Revolving Loan Commitment amount not to exceed the Incremental Amount from by adding one or more Incremental Lenders (which may include any existing lenders or increasing the Revolving Loan Commitment of a 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 Commitments , determined by the Company in their own its sole discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) and (iii) whether such Incremental Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Lender shall execute and deliver subject to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment consent of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving Credit 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 Swingline Lender and amortization schedule shall Issuing Banks (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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) ), which lender or lenders are willing to commit to such increase (each such lender, a “New Lender,” 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. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) abovecommitment, the initial yield on any “Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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”); provided, the amount of such OID divided by four.
(c) Notwithstanding the foregoinghowever, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless that (i) on the date Company may not elect any Incremental Commitment after the occurrence and during the continuance of such effectivenessan Event of Default, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate including, without limitation, any Event of Default that would result after giving effect to that effect dated such date and executed by an Authorized Officer of the Borrowerany Incremental Commitment, (ii) each Incremental Commitment shall be in an amount not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (iii) after giving effect to all Incremental Commitments the Administrative Agent aggregate Revolving Loan Commitments shall have receivednot exceed the Dollar Equivalent of $4,400,000,000 and (iv) on the effective date of the Incremental Commitment, each New Lender will, to the extent required by applicable, purchase at par that portion of outstanding Loans of 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 Lenders or take such additional customary documents and filings (including amendments to the Security Documents) other actions as the Administrative Agent may reasonably require determine to assure that be necessary to cause the Incremental Loans and Incremental Commitments are secured funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata 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 Credit Commitments, as applicable, (iii) no Default or Event 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 the Revolving Loan Commitments. An Incremental Commitment shall become effective upon the execution by each applicable New Lender of the last day a counterpart 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 this Agreement 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 delivering such counterpart to the Administrative Agent, for . Over the account term of the Administrative Agent Agreement the Company shall increase the Revolving Loan Commitments no more than five (5) times. Notwithstanding anything to the contrary in this Agreement, any Incremental Commitment made pursuant to this Section 2.14 may be effected by adding one or more tranches of Revolving Loan Commitments that are denominated in an Alternative Currency and/or term loan commitments (which shall be deemed to be “Revolving Loan Commitments” for purposes of this Section 2.14 (other than clause (iv) above)), and the Lenders (including agree that 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 amendment required 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 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 implement an Incremental Commitment (i) shall become a “Lender” for all purposes may be effected by the consent of this Agreement the Company and only those Lenders that agree to participate in any such tranche, provided that 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 aggregate amount of the commitments do not exceed the Dollar Equivalent of $4,400,000,000 at any time. Notwithstanding anything to the Borrower in a principal amount equal to such Incremental Commitmentcontrary herein, and such Incremental Loan or Incremental Commitment no Lender shall be a “Loan” or “Commitment” for all purposes of this Agreement and the other Loan Documents.
(e) Upon each Revolving Credit required to increase its 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence2.14.
Appears in 1 contract
Sources: Revolving Credit Agreement (American Tower Corp /Ma/)
Incremental Commitments. (a) The Any 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, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental 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 Commitments Loans in their own discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $5,000,000 and a minimum amount of $50,000,000 or, if less, 25,000,000 or equal to the then-remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) and ), (iii) in the case of any Incremental Term Loan Commitment, whether such Incremental Term Loan Commitments are to be Term B A-1 Loan Commitments, Revolving Credit Term A-2 Loan Commitments or commitments to make term loans with pricing and/or amortization other terms different from the Term B 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 are to be additional USD Revolving Facility Commitments, additional Multicurrency Revolving Facility Commitments or commitments to make revolving loans with pricing and/or other terms different from the Revolving Facility Loans (“Other Revolving Loans”).
(b) The applicable Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental CommitmentsLoans; provided that provided, that
(i) Revolving Credit 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 A-2 Facility Maturity Date; provided that 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 Term A-2 Facility Maturity Date and but no earlier than the Term A-1 Facility Maturity Date;
(Cii) the Weighted Average Life 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 maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term B 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 Facility (or Incremental Notes) 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 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 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 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 (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,
(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 incurred at any time after the 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, unless the 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 interest rate margin for the USD Revolving Facility;
(B) 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 Multicurrency Revolving Facility incurred at any time after the 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 Multicurrency Revolving Facility, unless the Applicable Margin with respect to the Multicurrency Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Multicurrency Revolving Facility and the all-in yield on the Multicurrency Revolving Facility minus 0.50% and the Applicable Margin with respect to the USD Revolving Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Multicurrency Revolving Facility;
(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 applicable 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;
(ix) to the extent any Incremental Term Facility is structured as an incremental term “b” facility, the applicable Borrower and the Incremental Lenders providing such Incremental Term Facility may agree to add excess cash flow mandatory prepayment provisions for the ratable benefit of the lenders of such tranche of incremental term “b” loans and all other outstanding tranches of Term Loans (provided that any such excess cash flow mandatory prepayment provisions shall automatically cease to be operative on and after the date that all such incremental term “b” loans are repaid in full) and/or to eliminate any Financial Covenant; and
(x) 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 (if any)), to the extent not consistent with the Facilities, shall be as agreed between the applicable 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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.0111.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the applicable 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 any Lender (other than the other applicable Incremental Lenders), effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 four2.15.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 2.15 unless (i) on the date of such effectiveness, the conditions condition set forth in paragraph (b) of Section 5.01(b) 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 an Authorized a Responsible Officer of the applicable Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Restatement Date under Section 5.02 6 of the Restatement 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 AgreementAgreement in accordance with clause (b)(viii) above, junior to) the existing Term B Loans Loans; and Revolving Credit Commitments, as applicable, (iii) no Default or Event of Default shall have occurred and be Continuing 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, (ivx) the Senior Secured Leverage Ratio (as established pursuant to a certificate of an Authorized Officer absence of the Borrower showing the Senior Secured Leverage Ratio determined in accordance with existence of any Default or Event of Default (other than an Event of Default under 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(a8.01(b), (c), (h) or (bi), as the case may be, have been (or were required to be) delivered immediately prior to and after giving effect shall not be a condition to the incurrence of such Incremental Loans Facility and (y) the foregoing clause (i) shall be limited, to the extent agreed with the Incremental CommitmentsLender(s) is equal providing such Incremental Facility, to customary “specified representations” and those representations of the seller or less than 3.00:1.00 the target company (assuming as applicable) included in the case of any Revolving Credit Commitment Increase acquisition agreement related to such Permitted Business Acquisition or Material Investment that the entire amount thereof is fully drawn) and (v) there shall have been paid are material to the Administrative Agent, for the account interests of the Administrative Agent Lenders and only to the Lenders (including any Person becoming extent that Holdings or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a Lender as part result of a breach of such representations (the “Incremental Assumption Agreement on the related Increased Amount DateFacilities Specified Representations”), 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 and Other Revolving Loans) in the form of additional Term B A-1 Loans, Term A-2 Loans, USD Revolving Facility Loans or Multicurrency Revolving Facility Loans, as the case may be, when originally made, are included in each Borrowing of outstanding Term B A-1 Loans, Term A-2 Loans, USD Revolving Facility Loans or Multicurrency Revolving Facility Loans, as applicable, on a pro-pro rata basis. The applicable Borrower agrees that 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
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Sources: Restatement Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) The Borrower Company may, by written notice to the General Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments, additional U.S. Revolving Commitments, additional Multicurrency Commitments and/or additional Japanese Commitments, as applicable, in an aggregate amount not to exceed the Incremental Facility Amount at such time, from one or more Incremental Term Lenders or Persons who will become U.S. Revolving Lenders, Multicurrency Lenders and/or Japanese 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 Commitments the same, in their own discretion); provided that each such Person, if not already a Lender hereunder, shall be subject to the approval of the General Administrative Agent and, if assuming a U.S. Revolving Commitment, the Issuing Lender and the Swingline Lender (which approvals shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments, additional U.S. Revolving Commitments, additional Multicurrency Commitments and/or additional Japanese Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $1,000,000 and a minimum amount of $50,000,000 or, if less, 10,000,000 or equal to the remaining Incremental Facility Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Term Loan Commitments, additional U.S. Revolving Commitments, additional Multicurrency Commitments and/or additional Japanese 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 otherwise agreed to by the General Administrative Agent) and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower Company and each Incremental Term Lender, additional U.S. Revolving Lender, additional Multicurrency Lender and/or additional Japanese Lender shall execute and deliver to the General Administrative Agent an Incremental Assumption Agreement and such other documentation as the General Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving Credit 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 made thereunder.
(Ic) 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 the Administrative Agents may take any and all actions as may be reasonably necessary to ensure that, upon after giving effect to any increase in the effectiveness Revolving Commitments of any Incremental Assumption AgreementClass pursuant to Section 6.05(a), the outstanding Revolving Loans (if any) of such Class are held by the Lenders in accordance with their new Applicable Percentages of such Class. This may be accomplished at the discretion of the General Administrative Agent by (i) requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Borrowing of such Class, (ii) causing non-increasing Lenders to assign (at par, with accrued interest and fees) portions of their outstanding Revolving Loans of the affected Class to Persons who are becoming Lenders (or increasing their Commitments of the applicable Class), or (iii) any combination of the foregoing. Any prepayment or assignment described in this Agreement paragraph (b) shall be amended subject to Section 6.11, but shall otherwise be without premium or penalty. In addition, to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by Loans are not Other Term Loans, the Administrative Agent scheduled amortization payments under Section 6.15 required to be equal to made after the sum making of (x) the 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 shall be ratably increased by the date aggregate principal amount of such Incremental Term Loans are made would exceed the Adjusted 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 fourLoans.
(cd) Notwithstanding the foregoing, no Incremental Term Loan Commitment or increase in any Revolving Commitment shall become effective under this Section 2.12 unless 6.05 unless, (i) on the date of such effectivenessthereof, the conditions set forth in paragraphs (c) and (d) of Section 5.01(b) 8.03 shall be satisfied or waived and the General Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized the President, a Vice President or a Financial Officer of the BorrowerCompany, and (ii) the General Administrative Agent shall have received, to received (with sufficient copies for each of the extent required by the Administrative Agent, customary Lenders) 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 Effective 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 Credit Commitments, as applicable, (iii) no Default or Event 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 paragraphs (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 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence8.01.
Appears in 1 contract
Incremental Commitments. No more than two (a2) The times following the earlier of (x) the completion of the syndication of the Term Loan Facility (as reasonably determined by the Administrative Agent) and (y) 90 days after the Closing Date and prior to the Term Loan Maturity Date, the Borrower may, may by written notice to the Administrative Agent from time elect to timerequest an increase to the Commitments (any such increase, request the “Incremental Commitments Commitments”), by an amount not in an excess of U.S. $72.0 million in the aggregate or a lesser amount not to exceed the Incremental Amount from one or more Incremental 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 Commitments in their own discretionEarn-Out Payment then due and payable. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) specify the date on which such Incremental Commitments are requested to become effective (the an “Increased Amount Date”) and (iii) whether such on which the Borrower proposes that the Incremental Commitments are and the date the Incremental Term Loans shall be made available, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) Administrative Agent. The Borrower and shall notify the Administrative Agent in writing of the identity of each Incremental Lender shall execute and deliver or other financial institution reasonably acceptable to the Administrative Agent (each, an “Incremental Assumption Agreement Lender”) to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and the amounts of such other documentation allocations; provided that (x) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide a Incremental Commitment; it being understood that no Lender is committing to provide any Incremental Commitment until such time as the Administrative Agent shall reasonably specify such Lender agrees in writing to evidence provide all or a portion of the Incremental Commitment and then only to the extent that such commitment complies with the requirements of Regulation U and Regulation X and (y) any such Incremental allocation to the Borrower or any of its Affiliates (including any Designated Lender. Each Incremental Assumption Agreement ) shall specify be subject to the terms of the applicable Section 9.04(e) and 9.22. Such Incremental CommitmentsCommitments shall become effective as of such Increased Amount Date, and such new Loans in respect thereof (“Incremental Term Loans”) shall be made on such Increased Amount Date; provided that (i) Revolving Credit Commitment Increases no Default or Event of Default shall have the same terms as the existing Revolving Credit exist on such Increased Amount Date before or after giving effect to such Incremental Commitments under this Agreement, and Incremental Term Loans; (ii) with respect the representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date; (iii) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such Incremental Commitments and Incremental Term Loans, with the covenants contained in Section 6.10 and Section 6.11 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower; (Aiv) the Other Term Loans Leverage Ratio shall rank pari passu in right of payment and of security with (including being guaranteed by the same Guarantors and being secured be less than 5.75 to 1.00 calculated on a pari passu basis by Pro Forma Basis after giving effect to such Incremental Commitments and Incremental Term Loans, as of the same Collateral as) last day of the Term B Loans andmost recently ended fiscal quarter in respect of the Borrower, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans or (yv) such other terms increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to the Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Borrower Administrative Agent and the Administrative Agent; provided that with respect to Incremental Term Loans, the interest rates and amortization schedule shall (subject to the following criteriarequirements set forth in Section 2.15(e); (vi) be determined by the Borrower and shall make any payments required pursuant to Section 2.14 in connection with the provisions of the Incremental Term Lenders providing such Incremental Term Loans and, Commitments; (vii) if the initial yield (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Incremental Term Loans, (y) if such Incremental Term Loans are initially made at a discount or the Lenders making the same receive an upfront fee from the Borrower or any Subsidiary for doing so (the amount of such discount or upfront fee, expressed as set forth belowa percentage of the Incremental Term Loans, being referred to herein as the “Incremental Upfront Fee”) and (z) interest rate floors applicable to such Incremental Term Loans (or, in the event that there are no interest rate floors applicable to such Incremental Term Loans or the interest rate floors applicable to such Incremental Term Loans are less than the interest rate floors applicable to the Term Loans, the Adjusted Eurodollar Rate (taking into account the interest rate floors, if any, applicable to such Incremental Term Loans) applicable to such Incremental Term Loans for a one-month Interest Period commencing on the Other applicable Increased Amount Date)) of any Incremental Term Loans exceeds the initial yield of the Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on the Term Loans, (y) the Upfront Closing Fee and (z) interest rate floors applicable to the Term Loans (or, in the event that there are no interest rate floors applicable to such Incremental Term Loans or the interest rate floors applicable to such Incremental Term Loans are less than the interest rate floors applicable to the Term Loans, the Adjusted Eurodollar Rate (taking into account the interest rate floors applicable to the Term Loans) applicable to the Term Loans for a one-month Interest Period commencing on the applicable Increased Amount Date)) by more than 50 25 basis points (the amount of such excess above 50 basis points being herein referred to herein as the relevant “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 each Applicable Margin then in effect for outstanding each adversely affected existing Term Loans Loan, as applicable, shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loan or the providing of the Incremental Commitment, as the case may be, (viii) neither the maintaining of the Loans under nor the commitment to make (or the making of) the Incremental Term Loan Commitmentand the granting and maintaining of the security interest in connection with the obligations created thereby, will, whether directly or indirectly, and whether immediately, incidentally or ultimately be a violation of, or inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X, and the Borrower will furnish to the Administrative Agent and each Lender a purpose statement in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U, and (Bix) the final maturity date proceeds of any Other Incremental Term Loans shall be no earlier than used solely to make earn-out payments (“Earn-out Payments”), if any, due and payable pursuant to 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 terms of the Term B LoansAcquisition Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Assumption AgreementCommitments as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 effect for a three month Interest Period commencing on such date) evidenced thereby, and (y) if the Incremental Term Loan Commitment is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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 Credit Commitments, as applicable, (iii) no Default or Event 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 Borrower may revise this Agreement to evidence such amendments without the consent of any Person becoming a Lender as part of that is not provided 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 Commitment 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 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Commitments. (a) The Borrower mayBorrowers and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by written notice executing and delivering to the Administrative Agent from time to time, request Incremental Commitments in Agents an amount not to exceed the Incremental Amount from one or more Incremental 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 Commitments in their own discretion. Such notice shall set forth Increased Facility Activation Notice specifying (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments such increase and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “applicable Increased Amount Facility Closing Date”) and (iii) whether such Incremental Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) Revolving Credit 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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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) 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 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 Credit Commitments, as applicable, (iii) no Default or Event of Default shall have occurred and be Continuing continuing and (ii) each of the representations and warranties made by any Loan Party in or would result therefrompursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (ivi) without the Senior Secured Leverage Ratio (as established consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to a certificate of an Authorized Officer this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Borrower showing Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Senior Secured Leverage Ratio determined Borrowers after the Closing Date. No Lender shall have any obligation to participate in accordance any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with Section 7.07 as the consent of the last day of Parent Borrower and the Fiscal Quarter most recently ended for Administrative Agent (which the financial statements required by Section 6.01(a) or (bconsent shall not be unreasonably withheld), as elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the case may beform of Exhibit H, have been whereupon such bank, financial institution or other entity (or were required to bea “New DocID \\DC - 036150/000014 - 15261895 v6 Lender”) delivered immediately prior to shall become a Lender for all purposes and after giving effect to the incurrence same extent as if originally a party hereto and shall be bound by and entitled to the benefits of Incremental this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans and Incremental Commitments(if any) is in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to or less than 3.00:1.00 such prepayment (assuming in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any Revolving Credit Commitment Increase then outstanding Interest Period(s)), as applicable (as modified hereby); provided that the entire amount thereof is fully drawnwith respect to subclauses (A) and (vB), (x) there the prepayment to, and borrowing from, any existing Lender shall have been paid 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 (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, for so that, after giving effect thereto, the account Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of the Administrative Agent and the such 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 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increase; provided that ) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any prepayment made in connection with such prepayment. Concurrently therewith, the taking of such steps Lenders shall be accompanied by accrued interest on the Revolving deemed to have adjusted their participation interests in any outstanding Letters of Credit Loans being prepaid and any costs incurred by any Lender so that such interests are held ratably in accordance with Section 3.05their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-pro rata borrowing and pro-pro rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be the transactions effected pursuant to the immediately preceding sentencethis clause (c).
Appears in 1 contract
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request (for cash or in exchange for other consideration) Incremental 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 Term Lenders (which may include any existing Lender, each of which shall be entitled to agree or decline to participate in such Incremental Term Loan Commitments in its sole discretion); provided that no each such existing Lender person shall be obligated subject to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments in their own discretionthe approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which, for which in the case of Incremental Commitments comprised of Term B Loan Commitments and Other Term LoansCommitments, shall be in minimum amount principal amounts of $50,000,000 20,000,000 or, if lesslower, equal to the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental 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 (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to be make additional Term B Loan Commitments, Revolving Credit Commitments Loans or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the applicable Incremental CommitmentsTerm Loans to be made thereunder; provided that that, without the prior written consent of the Majority Lenders, (i) Revolving Credit 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 or junior 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, and (except as to pricing, amortization pricing and final maturity date, amortization) 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, (Bii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Loan Maturity Date and Date, (Ciii) the Weighted Average Life weighted average life to Maturity maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term B Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent Loans and (but only to the extentiv) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, if the initial yield on any Incremental such Other Term Loan Commitment shall be Loans (as determined by the Administrative Agent to be equal to the sum of (x) the interest rate margin above the Adjusted Eurodollar LIBO 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 Other Term Loans on the date such Incremental Term Loans are made would exceed the Adjusted Eurodollar Rate that would be in effect for a three month Interest Period commencing on such date) and (y) if the Incremental such Other Term Loan Commitment is originally advanced Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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 Credit Commitments, as applicable, (iii) no Default or Event 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 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.the
Appears in 1 contract
Sources: Term Loan Credit Agreement (CGG)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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; provided that no such existing Lender shall be obligated to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $5.0 million and a minimum amount of $50,000,000 or, if less, 5.0 million or equal to the remaining Incremental Amount, and Amount or in integral multiples of $10,000,000 in excess thereofeach case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”) and ), (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 Loan Commitments, Revolving Credit Commitments 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 are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental 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 provided, that
(i) Revolving Credit Commitment Increases shall have the same terms except as the existing Revolving Credit Commitments under this Agreementto pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii) with respect to through (iv) of this proviso, be determined by the Borrower and the Incremental Term LoansLenders in their sole discretion), (A) the Other Term Loans shall rank pari passu in right of payment have (x) terms substantially similar to, or not materially less favorable to the Borrower and of security with (including being guaranteed by its Subsidiaries than, the same Guarantors terms and being secured on conditions, taken as a pari passu basis by the same Collateral as) whole, applicable to the Term B Loans and(except for 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), 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 criteriaii) 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 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans, or be unsecured (the amount of provided, that if such excess above 50 basis points being herein referred to as the “Yield Differential”) the interest rate margins then in effect for outstanding Other Term Loans (which shall be calculated to be rank junior in right of security with the sum of (I) the Applicable Margin then in effect for Eurodollar Rate Loans increased by the amount that any “Eurodollar floor” applicable to Term B Loans, 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 Other Term Loans shall automatically be increased by subject to a Permitted Junior Intercreditor Agreement and, for the Yield Differentialavoidance of doubt, effective upon the making of the Incremental Other Term Loans under that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Incremental Term Loan Commitment, B Loans and shall not be subject to clause (Bviii) below),
(iii) the final maturity date of any Other Term Loans shall be no earlier than the latest Term B Facility Maturity Date and in effect on the date of incurrence,
(Civ) 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 mandatory prepayments and commitment reductions and ranking as to security (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 (x) 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 (except for 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) or (y) 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 clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent 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 voluntary or 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 voluntary or mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 10.019.08(e) (including, without limitation, any amendment to Section 2.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 or Incremental Revolving Facility Commitment shall become effective under this Section 2.12 2.21 unless (i) 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 5.01(b) 4.01 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 a Responsible Officer of the Borrower, Borrower and (iiB) the Administrative Agent shall have received, to the extent required 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 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 this Agreement, junior to) the existing Term B Loans and Revolving Credit Commitments, as applicable, (iii) no Default or Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrower) or (i) (with respect to the Borrower) shall have occurred and be Continuing 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 (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 the outstanding applicable Class of Term B Loans on a pro-pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 3.05 2.16 shall not apply to any conversion of Eurodollar Rate Eurocurrency Loans to Base Rate ABR 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.
(e) Upon each Revolving Credit Commitment Increase pursuant Notwithstanding anything to the contrary in this SectionAgreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) each 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 Credit Lender immediately prior 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 increase will automatically 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 further act be deemed 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 have assigned “on the same terms” in the preceding sentence shall mean, in the case of an offer to each existing 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 Credit LenderFacility, if any, and each Incremental Lender, if anythat all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case providing a portion 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. 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”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Credit Commitment Increase Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) ifand (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer and shall not be subject to the provisions set forth in Section 2.21(b)(viii)), the Extended Term Loans shall have (x) 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 existing Class of Term Loans (except for 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), 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 such Revolving Credit Commitment Increaseincurrence, there are (iii) the Weighted Average Life to Maturity of any Revolving Credit Extended Term Loans outstanding, shall be no shorter than the Administrative Agent shall take those steps which it deems, in its sole discretion necessary and appropriate remaining Weighted Average Life to result in each Revolving Credit Lender having a pro-rata share Maturity of the outstanding Revolving Credit Class of Term Loans based on each to which such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after offer relates (without giving effect to any amortization or prepayments on such Class of Term Loans), (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 Credit Facility Commitment Increase; provided that any prepayment made in connection with shall have (x) terms substantially similar to, or not materially less favorable to the taking Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the existing Class of Revolving Facility Commitments (except for covenants and other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such steps Extended Revolving Facility Commitments) or (y) have such other terms as shall be accompanied by accrued interest reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the Revolving Credit Loans being prepaid and effectiveness of any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowingIncremental Assumption Agreement, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.be
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Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to timetime after the Effective Date, request Incremental Commitments in an amount not to exceed the Incremental Amount from respect of one or more Classes of term loans in an aggregate amount at any time that would not otherwise violate clause (c) of this Section at such time. The Incremental Commitments will be provided by Incremental 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 Commitments in their own discretion. Such Any such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $5,000,000 and a minimum amount of $50,000,000 20,000,000 or, if lessin each case, such lesser amount as permitted by the remaining Incremental AmountAdministrative Agent, and in integral multiples or equal to the maximum amount that can be incurred subject to clause (c) of $10,000,000 in excess thereofthis Section at such time), (ii) the date on which such Incremental Commitments are requested to become effective (the any such date, an “Increased Amount Incremental Effective Date”) and (iii) whether such Incremental Commitments are to be Term B Loan Commitmentsthe interest rate, Revolving Credit Commitments or commitments to make term loans amortization, maturity and other terms being requested with pricing and/or amortization terms different from the Term B Loans respect thereto (“Other Term Loans”which shall comply with clause (b) below).
(b) The Borrower terms and each conditions of any Incremental Lender Commitments and Loans to be made thereunder shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of be determined by the applicable Incremental CommitmentsLenders and the Borrower and shall be as set forth in the applicable Incremental Facility Agreement; provided that (i) Revolving Credit 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 such Loans shall be no shorter than, and the Maturity Date applicable to such Loans shall be no earlier than, the latest Maturity Date in effect at the time of incurrence of such Loans, (ii) except as to interest rates, fees, other pricing terms, amortization, final maturity date and participation in prepayments, all representations and warranties, affirmative or negative covenants or events of default applicable for the benefit of Incremental Lenders having or holding such Incremental Commitments or Loans shall also be applicable for the benefit of all the Lenders and (iii) such Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder.
(c) The Incremental Commitments of any Class shall be effected pursuant to an Incremental Facility Agreement executed and delivered by the remaining Weighted Average Life to Maturity Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that
(i) the principal amount of Indebtedness that may be Incurred under an Incremental Commitment on any date shall not exceed the maximum principal amount of Secured Indebtedness that may be Incurred and secured by the Liens securing such Indebtedness, as of the Term B Loans. Each date such Indebtedness is Incurred, after giving pro forma effect to the Incurrence of such Secured Indebtedness and the application of proceeds therefrom on such date, without causing a Default or Event of Default hereunder as a result of the parties hereto hereby agrees thatIncurrence of such Secured Indebtedness on such date, upon (ii) the effectiveness Class of any Loans to be made under such Incremental Assumption Agreement, this Agreement Commitments shall be amended made thereunder on the effective date of the applicable Incremental Facility Agreement and (iii) the Borrower shall have delivered to the extent (but only to the extent) necessary to reflect the existence Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and terms of the Incremental Term Loan Commitments evidenced thereby other customary documents as provided for in Section 10.01. Any such deemed amendment may shall reasonably be memorialized in writing requested by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished in connection therewith. The Administrative Agent shall promptly notify each Lender as to the other parties hereto, it being understood that such effectiveness of each Incremental Assumption Facility Agreement. Each Incremental Facility Agreement may, without the consent of the other Lendersany Lender, effect such amendments to this Agreement or any and the other Loan Document Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to 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 (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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) 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 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 Credit Commitments, as applicable, (iii) no Default or Event 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 Date2.23.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any All Incremental Commitments and all action as may obligations in respect thereof shall 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 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 Obligations under 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 Documents that are secured by the Collateral on 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 pari passu basis with all purposes of other Obligations under this Agreement and the other Loan Documents.
(e) Upon each Revolving Credit the effectiveness of an Incremental Commitment Increase pursuant to this Sectionof any Incremental Lender, (i) each Revolving Credit such Incremental Lender immediately prior to such increase will automatically and without further act shall be deemed to have assigned to each existing Revolving Credit be a “Lender, if any” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and each Incremental Lenderhenceforth shall be entitled to all the rights of, if anyand benefits accruing to, Lenders (or Lenders in each case providing a portion respect of such Revolving Credit Commitment Increase Commitments and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increase; provided that any prepayment made in connection with applicable Class) hereunder and under 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentenceother Loan Documents.
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Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to timetime after the Effective Date, request Incremental Commitments in an amount not to exceed the Incremental Amount from respect of one or more Classes of term loans in an aggregate amount at any time that would not otherwise violate clause (c) of this Section at such time. The Incremental Commitments will be provided by Incremental 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 Commitments in their own discretion. Such Any such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $5,000,000 and a minimum amount of $50,000,000 20,000,000 or, if lessin each case, such lesser amount as permitted by the remaining Incremental AmountAdministrative Agent, and in integral multiples or equal to the maximum amount that can be incurred subject to clause (c) of $10,000,000 in excess thereofthis Section at such time), (ii) the date on which such Incremental Commitments are requested to become effective (the any such date, an “Increased Amount Incremental Effective Date”) and (iii) whether such Incremental Commitments are to be Term B Loan Commitmentsthe interest rate, Revolving Credit Commitments or commitments to make term loans amortization, maturity and other terms being requested with pricing and/or amortization terms different from the Term B Loans respect thereto (“Other Term Loans”which shall comply with clause (b) below).
(b) The Borrower terms and each conditions of any Incremental Lender Commitments and Loans to be made thereunder shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of be determined by the applicable Incremental CommitmentsLenders and the Borrower and shall be as set forth in the applicable Incremental Facility Agreement; provided that (i) Revolving Credit 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 such Loans shall be no shorter than, and the Maturity Date applicable to such Loans shall be no earlier than, the latest Maturity Date in effect at the time of incurrence of such Loans, (ii) except as to interest rates, fees, other pricing terms, amortization, final maturity date and participation in prepayments, all representations and warranties, affirmative or negative covenants or events of default applicable for the benefit of Incremental Lenders having or holding such Incremental Commitments or Loans shall also be applicable for the benefit of all the Lenders and (iii) such Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder.
(c) The Incremental Commitments of any Class shall be effected pursuant to an Incremental Facility Agreement executed and delivered by the remaining Weighted Average Life to Maturity Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (i) the principal amount of Indebtedness that may be Incurred under an Incremental Commitment on any date shall not exceed the maximum principal amount of Secured Indebtedness that may be Incurred and secured by the Liens securing such Indebtedness, as of the Term B Loans. Each date such Indebtedness is Incurred, after giving pro forma effect to the Incurrence of such Secured Indebtedness and the application of proceeds therefrom on such date, without causing a Default or Event of Default hereunder as a result of the parties hereto hereby agrees thatIncurrence of such Secured Indebtedness on such date, upon (ii) the effectiveness Class of any Loans to be made under such Incremental Assumption Agreement, this Agreement Commitments shall be amended made thereunder on the effective date of the applicable Incremental Facility Agreement and (iii) the Borrower shall have delivered to the extent (but only to the extent) necessary to reflect the existence Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and terms of the Incremental Term Loan Commitments evidenced thereby other customary documents as provided for in Section 10.01. Any such deemed amendment may shall reasonably be memorialized in writing requested by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished in connection therewith. The Administrative Agent shall promptly notify each Lender as to the other parties hereto, it being understood that such effectiveness of each Incremental Assumption Facility Agreement. Each Incremental Facility Agreement may, without the consent of the other Lendersany Lender, effect such amendments to this Agreement or any and the other Loan Document Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to 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 (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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) 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 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 Credit Commitments, as applicable, (iii) no Default or Event 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 Date2.23.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any All Incremental Commitments and all action as may obligations in respect thereof shall 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 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 Obligations under 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 Documents that are secured by the Collateral on 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 pari passu basis with all purposes of other Obligations under this Agreement and the other Loan Documents.
(e) Upon each Revolving Credit the effectiveness of an Incremental Commitment Increase pursuant to this Sectionof any Incremental Lender, (i) each Revolving Credit such Incremental Lender immediately prior to such increase will automatically and without further act shall be deemed to have assigned to each existing Revolving Credit be a “Lender, if any” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and each Incremental Lenderhenceforth shall be entitled to all the rights of, if anyand benefits accruing to, Lenders (or Lenders in each case providing a portion respect of such Revolving Credit Commitment Increase Commitments and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increase; provided that any prepayment made in connection with applicable Class) hereunder and under 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentenceother Loan Documents.
Appears in 1 contract
Incremental Commitments. The US Borrower may at any time or from time to time after the Closing Date (a) The Borrower maybut prior to the Latest Maturity Date), by written notice to the Administrative Agent from time (whereupon the Administrative Agent shall promptly deliver a copy to timeeach of the Lenders) (an “Incremental Loan Request”), request Incremental Commitments in an amount not to exceed the Incremental Amount from one or more Incremental 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 Commitments in their own discretion. Such notice shall set forth (i) the establishment of one or more new term loan commitments, which may be in the same Credit Facility as any outstanding Term Loans of an existing Class of Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (ii) one or more increases in the amount of the Incremental Revolving Commitments being requested of an existing Class of Revolving Commitments (whicha “Revolving Commitment Increase”) or the establishment of one or more new revolving commitments (any such new revolving commitments, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if lesscollectively with any Revolving Commitment Increases, the remaining “Incremental AmountRevolving Commitments”; the Incremental Revolving Commitments, and in integral multiples of $10,000,000 in excess thereof)collectively with any Incremental Term Commitments, (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount DateIncremental Commitments”) and (iii) whether such Incremental Commitments are in an aggregate principal amount not to be Term B Loan Commitmentsexceed, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms any date of the applicable Incremental Commitments; provided that (i) Revolving Credit Commitment Increases shall have the same terms as the existing Revolving Credit Commitments under this Agreementdetermination, (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 (IA) $300,000,000 less the Applicable Margin then in effect for Eurodollar Rate Loans increased by the aggregate principal amount that any “Eurodollar floor” applicable of Incremental Equivalent Indebtedness incurred pursuant to clause (A) of Section 6.01(r) at or prior 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 time, 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 aggregate amount of any Other voluntary prepayments of Term Loans shall be no earlier made pursuant to Section 2.10(a) and prepayments of Revolving Loans made in connection with a permanent repayment and termination of corresponding Revolving Commitments prior to such time (in each case, other than any such voluntary prepayments made with the Term B Facility Maturity Date and proceeds of Indebtedness), less the aggregate principal amount of Incremental Equivalent Indebtedness incurred pursuant to clause (B) of Section 6.01(r) at or prior to such time, plus (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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 additional amounts so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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) long as the Administrative Agent may reasonably require to assure that the Incremental Loans and Incremental Commitments are secured by the Collateral ratably with (orConsolidated First Lien Leverage Ratio, to the extent agreed by the applicable Incremental Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Credit Commitments, as applicable, (iii) no Default or Event of Default shall have occurred and be Continuing or would result therefrom, (iv) the Senior Secured Leverage Ratio (as established pursuant to determined on a certificate of an Authorized Officer of the Borrower showing the Senior Secured Leverage Ratio determined in accordance with Section 7.07 pro forma basis 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)Test Period, as the case may be, have been (if any Incremental Term Loans 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)Loans, as applicable, all fees available under such Incremental Commitments had been outstanding on the last day of such period (but without giving effect to any amount incurred simultaneously under the immediately preceding clauses (A) and expenses (including reasonable out-of-pocket feesB)), charges and disbursements of counsel) that are due and payable on or before the Increased Amount Date.
(d) Each and, in each case, with respect to any Incremental Revolving Commitment, assuming a borrowing of the parties hereto hereby agrees maximum amount of Loans available thereunder , does not exceed 2.50:1.00; provided that, to the extent the proceeds of any Incremental Term Loans or Incremental Term Commitments are intended to be applied to finance a Limited Condition Acquisition, the Consolidated First Lien Leverage Ratio shall be tested in accordance with Section 1.08(c). Notwithstanding anything herein to the contrary, no Incremental Amendment shall increase the Dollar Equivalent of the aggregate principal amount of the Revolving Loans that the Administrative Agent may take any and all action as may be reasonably necessary made to ensure that all Incremental Loans (other than Other Term Loans1) the Canadian Borrower to an amount in the form excess 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 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 $40,000,000 and (iii2) shall make the UK Borrower to an Incremental Term Loan or provide a Revolving Credit Commitment Increase to amount in excess of $10,000,000, unless the Borrower in a nominal principal amount of the Goderich Mine Mortgage is increased by an 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.
(e) Upon each Revolving Credit Commitment Increase pursuant to this Section, (i) each Revolving Credit Lender immediately prior to such Dollar Equivalent 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 portion plus 20% of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentenceDollar Equivalent increase.
Appears in 1 contract
Sources: Credit Agreement (Compass Minerals International Inc)
Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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; provided that no such existing Lender shall be obligated to provide any such Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $5,000,000 and a minimum amount of $50,000,000 or10,000,000, if less, or equal to the remaining Incremental AmountAmount or, and in integral multiples of $10,000,000 in excess thereofeach case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”) ), and (iii) (a) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Initial Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing interests rates and/or amortization and/or maturity and/or other terms different from the Initial Term B Loans (“Other Term Loans”) and/or (b) whether such Incremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing and/or amortization and/or maturity and/or other terms different from the Revolving Facility Loans (“Other Revolving Loans”);
(b) The Administrative Agent shall notify the Borrower and each applicable Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to an Incremental Assumption Agreement.
(bc) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental 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 provided, that
(i) Revolving Credit Commitment Increases shall have the same terms except as the existing Revolving Credit Commitments under this Agreementto pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii), (iiiii), (vi), (vii) with respect to and (ix) of this proviso, be determined by the Borrower and the Incremental Term LoansLenders in their sole discretion), (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 substantially similar terms as the Initial 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 Initial Term B Loan Facility Maturity Date and Date,
(Ciii) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term B Loans. Each of the parties hereto hereby agrees that,
(iv) except as to pricing, upon the effectiveness of any Incremental Assumption Agreementamortization, this Agreement shall be amended commitment reduction, final maturity date, participation in mandatory prepayments and ranking as to the extent security (but only which shall, subject to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent clause (not to be unreasonably withheldv), (vi), (viii) 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 (ix) 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 (ii)(A) aboveproviso, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to Borrower and the sum of Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) substantially similar terms as the 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 effect for a three month Interest Period commencing on such date) and Revolving Facility or (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 other terms as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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 Credit Commitments, as applicable, (iii) no Default or Event 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 satisfactory 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.,
(dv) Each the final maturity date of any Other Revolving Loans shall be no earlier than, and shall require no scheduled amortization or mandatory commitment reductions prior to, 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 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 Facility Maturity Date with respect 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.
(e) Upon each Initial 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.Loans;
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Incremental Commitments. At any time following the earlier of (ax) The completion of the syndication of the Revolving Loan Facility (as reasonably determined by the Administrative Agent) and (y) 90 days after the Closing Date and prior to the Revolving Facility Maturity Date, the Borrower may, may from time to time by written notice to the Administrative Agent from time elect to timerequest an increase to the existing Revolving Facility Commitments (any such increase, the “Incremental Revolving Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental Commitments Term Facility Commitments” and together with the Incremental Revolving Facility Commitments, if any, the “Incremental Commitments”), in an amount aggregate principal amount, collectively, not to exceed the Incremental Amount from one or more Incremental 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 Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which$250.0 million, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if lessin each case, the remaining Incremental Amount, and a lesser amount in integral multiples of $10,000,000 in excess thereof), (ii) 5.0 million. Such notice shall specify the date on which such Incremental Commitments are requested to become effective (the an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall be made available, which shall be a date not less than 5 Business Days (iiior such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion) whether after the date on which such notice is delivered to the Administrative Agent. The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender or other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, and in the case of any Person committing to any Incremental Revolving Facility Commitment, reasonably acceptable to the Issuing Banks and the Swingline Lenders (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental Commitments are have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to be provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date, and in the case of Incremental Term B Loan Facility Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B such new Loans in respect thereof (“Other Incremental Term Loans”).
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and be made on such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental CommitmentsIncreased Amount Date; provided that (i) Revolving Credit Commitment Increases no Default or Event of Default shall have the same terms as the existing Revolving Credit exist on such Increased Amount Date before or after giving effect to such Incremental Commitments under this Agreement, and Incremental Term Loans; (ii) with respect the representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date; (iii) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such Incremental Commitments (assuming the Revolving Facility Commitments, including any Incremental Revolving Facility Commitments, are fully drawn) and Incremental Term Loans, with the Financial Performance Covenants recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries; (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 (yiv) such other terms increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Borrower Administrative Agent and the Administrative Agent; provided that with respect to Incremental Term Loans, the interest rates and amortization schedule shall (subject to the following criteriarequirements set forth in Section 2.17(e); (v) be determined by the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; and (vi) the Borrower and the its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments or make any 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, upon the effectiveness of any joinder agreements in connection with any Incremental Assumption AgreementCommitments as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 effect for a three month Interest Period commencing on such date) evidenced thereby, and (y) if the Incremental Term Loan Commitment is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and 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 Credit Commitments, as applicable, (iii) no Default or Event 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 Borrower 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 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 revise this Agreement and to evidence such amendments without 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 consent of this Agreement and the other Loan Documentsany Lender.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
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Incremental Commitments. (a) The Borrower mayshall have the right at any time or from time to time on or after the Incremental Availability Date, by upon written notice to and consent of the Administrative Agent, and in coordination with the Administrative Agent from time as to timeall matters set forth in this Section 2.13, but without requiring the consent of any of the Lenders, to request Incremental Commitments in an amount not to exceed the Incremental Amount from that one or more Incremental Lenders (and/or one or more other Eligible Transferees which may include any will become Lenders) provide Incremental Commitments pursuant to (x) one or more new Tranches of Incremental Commitments or (y) an increase in the amount of Incremental Commitments under one or more existing Lender; provided that no Tranches on the same terms as such existing Tranches (the “Incremental Commitment Increase” and, together with any additional Tranche of Incremental Commitments, the “Incremental Facility”), provided that:
(i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the Borrower;
(ii) any Lender (including any Eligible Transferees which will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender;
(iii) the provision of Incremental Commitments unless it so agrees) willing pursuant to provide such this Section 2.13 on a given date pursuant to a particular Incremental Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Transferees who will become Lenders pursuant thereto) of not less than $50,000,000 or, if less, 20,000,000 (or such lesser amount as agreed to by the remaining Incremental Amount, Borrower) and shall be in integral multiples of $10,000,000 in excess thereof), 5,000,000;
(iiiv) the date on which such Incremental Commitments are shall not exceed an aggregate principal amount of $350,000,000;
(v) the Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement;
(vi) the Borrower shall not obtain Incremental Commitment Increases or new Tranches of Incremental Commitments pursuant to this Section 2.13 more than three times and each notice thereof from the Borrower shall set forth the requested amount and proposed terms of the relevant Incremental Commitment Increase or new Tranche of Incremental Commitments;
(vii) the upfront fees payable to become effective (each Incremental Lender in respect of each Incremental Commitment shall be separately agreed to by the “Increased Amount Date”) Borrower and (iii) whether each such Incremental Commitments are Lender; and
(viii) the Incremental Loans incurred under any Tranche and the Letters of Credit issued pursuant to an Incremental Commitment under such Tranche shall constitute Loans and Letters of Credit for all purposes of this Agreement and the other Credit Documents and as a consequence all such Incremental Loans and Letters of Credit (and all interest, fees and other amounts payable thereon) shall be Term B Loan CommitmentsObligations under this Agreement and the other applicable Credit Documents and shall be secured by the Security Documents, Revolving Credit Commitments or commitments to make term loans and receive the benefit of the Guaranties, on a pari passu basis with pricing and/or amortization terms different from all other Obligations secured by the Term B Loans (“Other Term Loans”)Security Documents and receiving the benefit of the Guaranties.
(b) The On or prior to the Incremental Availability Date, at the time of any provision of Incremental Commitments under any Tranche pursuant to this Section 2.13, the following conditions shall have been satisfied:
(i) the Borrower and each such Lender or other Eligible Transferee (each an “Incremental Lender Lender”) which agrees to provide an Incremental Commitment shall execute and deliver to the Administrative Agent an Incremental Assumption Commitment Agreement substantially in the form of Exhibit Q (appropriately completed) (each an “Incremental Commitment Agreement”), with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Eligible Transferee providing such Incremental Commitment if such consent would be required under Section 14.04 for an assignment of Loans or Commitments, as applicable, to such Eligible Transferee;
(ii) the Borrower and each Credit Party shall have delivered such amendments, modifications and/or supplements to the Credit Documents as are necessary or in the reasonable opinion of the Administrative Agent, desirable to insure that the additional Obligations to be incurred pursuant to the Incremental Commitments are secured by, and entitled to the benefits of, the Security Documents and the Guaranties;
(iii) the Administrative Agent shall have received evidence satisfactory to it that the additional Obligations to be incurred on such date pursuant to the Incremental Commitments are permitted by the terms of the outstanding Indebtedness of the Borrower and its Subsidiaries;
(iv) if reasonably requested by the Administrative Agent, 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 covering such matters as the Administrative Agent may reasonably request;
(v) the Borrower and the other Credit Parties shall deliver to the Administrative Agent such other documentation officers’ certificates, board of director resolutions and evidence of existence and good standing, where applicable, as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that request;
(i) Revolving Credit Commitment Increases shall have the same terms as the existing Revolving Credit Commitments under this Agreement, (ii) with respect to Incremental Term Loans, (Avi) 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 Parent 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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent compliance with the 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. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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) on the date of such effectiveness, the conditions covenants set forth in Section 5.01(b) Sections 10.07 through and including 10.10, in each case determined on a pro forma basis as of the most recently ended Test Period (or, if no Test Period cited in Sections 10.07 through and including 10.10 has concluded, the covenants in Sections 10.07 through and including 10.10 for the first Test Period cited in such Sections shall be satisfied or waived as of the last four quarters then ended), in each case, as if such Incremental Commitments had been outstanding and fully utilized on the last day of such fiscal quarter of the Parent for testing compliance therewith, certified as such by the Parent in writing, and the Administrative Agent shall have received a certificate to that effect dated evidence of such date and executed by an Authorized Officer of the Borrower, compliance;
(iivii) the Administrative Agent shall have receivedreceived a certificate, to dated the extent required Incremental Availability Date, and signed on behalf of the Borrower by the Administrative Agentchief executive officer, customary legal opinionsthe president or any vice president of the Borrower certifying on behalf of the Borrower that all of the conditions set forth in Sections 6.09, board resolutions 6.10 and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered 7.01 have been satisfied on the Closing Date under Section 5.02 and such additional customary documents and filings date;
(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 Credit Commitments, as applicable, (iiiviii) no Default or Event of Default shall have occurred and be Continuing exist at the time of a request for Incremental Commitments under any Tranche, upon the effectiveness of any Incremental Commitment Agreement or would result therefrom, (iv) at the Senior Secured Leverage Ratio (as established time that an Incremental Loan is made or a Letter of Credit is issued 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 such Tranche (b), as the case may be, have been (or were required to be) delivered immediately prior to and after giving effect thereto); and
(ix) all of the representations and warranties of each Credit Party set forth in Section 8 and in each other Credit Document shall be true and correct in all material respects at the time of a request for Incremental Commitments under any Tranche, upon the effectiveness of any Incremental Commitment Agreement and at the time that an Incremental Loan is made or a Letter of Credit is issued pursuant to such Tranche (and after giving effect thereto) (in each case, except to the incurrence extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date).
(c) Other than as set forth in this Agreement, Incremental Loans made pursuant to any Tranche of Incremental Loans Commitments shall have the same terms as the Initial Loans; provided that the “Applicable Margin” with respect to a Tranche of Incremental Commitments and Letters of Credit issued under such Tranche shall be a percentage per annum agreed to by the Borrower and the Lender providing such Incremental Commitments) is equal to or less than 3.00:1.00 (assuming Commitments as set forth in the case of any Revolving Credit relevant Incremental 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 DateAgreement.
(d) Each On the effective date 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 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.
(e) Upon each Revolving Credit Commitment Increase pursuant to this SectionSection 2.13, (i) the Borrower shall, in coordination with the Administrative Agent, repay outstanding Incremental Loans of the existing Lenders under each Revolving Credit Lender immediately prior to Tranche of Incremental Commitments and incur additional Loans under each 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 anyTranche from certain other new Lenders, in each case providing a portion to the extent necessary so that all of the Lenders under such Revolving Tranche participate in each outstanding Borrowing of Incremental Loans and issuance of Letters of Credit Commitment Increase and (ii) if, under such Tranche pro rata on the date basis of their respective Incremental Commitments under 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately Tranche (after giving effect to such Revolving Credit any increase in the Total 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.this Section 2.13
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Incremental Commitments. (a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments in an amount not to exceed the and/or additional Revolving Commitments, as applicable (collectively, “ Incremental Amount Commitments ”), from one or more Incremental Lenders (which may include any existing Lenderin the sole discretion of such Lenders) or Eligible Assignees who will become Lenders, in an aggregate principal amount of up to $ 20 , 000 , 000 ; provided that no such existing Lender shall be obligated to provide any at the time of the incurrence of such Incremental Commitments unless it so agreesand immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), no Default shall have occurred and be continuing or would result therefrom ; provided , further , that ( 1 ) willing each such person, if not already a Lender hereunder, shall be subject to provide the approval of the Administrative Agent and, in connection with any additional Revolving Commitment, the L/C Issuer and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed) and ( 2 ) the Borrower may make only 4 such Incremental Commitments in their own discretionrequests . Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or additional Revolving Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $ 1 , 000 , 000 and a minimum amount of $50,000,000 or$ 5 , 000 , 000 , or if lessthe remaining Incremental Commitments are less than $ 5 , 000 , 000 , the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereofCommitment), (ii) the date on which such Incremental Term Loan Commitments and/or additional Revolving Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 calendar days after the “Increased Amount Date”date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (““ Other Term LoansLoans ”).
) . All Incremental Term Loans shall be made in Dollars . (b) The Borrower and each Incremental Term Lender and/or additional 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 Commitment of such Incremental LenderLender . Each Subject to clause (c) below, each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the applicable Incremental Commitments; provided that (i) Revolving Credit 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 to be made thereunder . The Administrative Agent shall promptly notify each Lender 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 effectiveness of the each 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 LoansAssumption Agreement . Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the 71 NAI - 1543452693v1 1543452693v6 Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01and any increase to the Applicable Margins required by the foregoing provisions of this paragraph . Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld, conditioned or delayed) and furnished to the other parties heretohereto . (c) The terms of each Incremental Term Loan and, it being understood that as applicable, each additional Revolving Commitment shall be reasonably satisfactory to the Administrative Agent and in any event : (i) shall rank pari passu in right of payment and of security with the existing Revolving Loans and the existing Term Loans ; (ii) in the case of Incremental Term Loans, shall not mature earlier than the Latest Maturity Date of the Term Loans outstanding at the time of incurrence of such Incremental Term Loans ; (iii) in the case of Incremental Term Loans, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then existing Term Loans ; (iv) in the case of Incremental Term Loans, subject to clauses (ii) and (iii) above, shall have amortization determined by the Borrower and the applicable Incremental Term Lenders ; (v) in the case of Incremental Term Loans, subject to clause (x) below, shall have an Applicable Margin determined by the Borrower and the applicable Incremental Term Lenders ; (vi) in the case of 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 initial Term Loans hereunder, as specified in the applicable Incremental Assumption Agreement may, ; (vii) without the prior written consent of any Loan Party or Credit Party, if the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield Effective Yield on any Incremental secured Other Term Loan Commitment shall be Loans (as determined by the Administrative Agent to be equal to the sum of (xAgent) the 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 exceeds 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 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 more than 50 basis points (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, excess above 50 basis points being referred to herein as “OIDthe “ Yield Differential ”)) the Effective Yield (as determined by the Administrative Agent) on any then outstanding Class of Term Loans, then the amount Applicable Margin for each such Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such OID divided by four.
Other Term Loans ; and (cviii) Notwithstanding all material terms of any additional Revolving Commitments and Revolving Loans under such additional Revolving Commitments shall be identical to the foregoing, no existing Revolving Commitments and Revolving Loans . (d) No Incremental Term Loan Commitment Commitments or additional Revolving Commitments shall become effective under this Section 2.12 unless (i) 2 . 11 unless, on the date of such effectiveness, (i) the conditions set forth in paragraphs (a) and (b) of Section 5.01(b) 4 . 2 shall be satisfied or waived 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 an Authorized a Financial Officer of the Borrower, Borrower ; (ii) the Total Consolidated Net Leverage Ratio on a Pro Forma Basis after giving effect to such Incremental Term Loans or Revolving Commitments, as applicable, shall be at least 0 . 25 x less than the maximum Consolidated Net Leverage Ratio permitted for such period under Section 7.12; and (iii) 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 received (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 Credit Commitments, as applicable, (iii) no Default or Event sufficient copies for each 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 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.72 NAI - 1543452693v1 1543452693v6
Appears in 1 contract
Incremental Commitments. (a) The Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount not to exceed the Incremental Amount at the time of such request from one or more Incremental 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 Commitments in their own discretion; provided, that each Incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, which shall be in minimum increments of $2.5 million and a minimum amount of $50,000,000 or, if less, 10.0 million or equal to the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereofAmount or such lesser amount acceptable to the Administrative Agent), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) ), and (iii) whether such Incremental Commitments are to be Term B Loan (A) Tranche A Revolving Facility Commitments, (B) Tranche B Revolving Credit Commitments or Facility Commitments, (C) commitments to make term revolving loans (such loans, “Other Tranche A Loans”) under the Borrowing Base applicable to, and with the payment and collateral priorities of, the Tranche A Revolving Facility Loans, but with pricing terms, final maturity date and/or amortization upfront or similar fees or other terms different from the Term B Tranche A Revolving Facility Loans or (D) commitments to make revolving loans (such loans, “Other Term Tranche B Loans”)) under the Borrowing Base applicable to, and with the payment and collateral priorities of, the Tranche B Revolving Facility Loans, but with pricing terms, final maturity date and/or upfront or similar fees or other terms different from the Tranche B Revolving Facility Loans.
(b) The Borrower applicable Borrowers and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that provided, that:
(i) Revolving Credit 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 Tranche A 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 Tranche A Revolving Facility Loans and, except as to pricing, amortization and final maturity datedate and/or upfront or similar fees, shall have (x) the same terms as the Term B Tranche A Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Borrower Administrative Agent,
(ii) the Other Tranche B Loans shall rank pari passu in right of payment and of security with the Tranche B Revolving Facility Loans and, except as to pricing, final maturity date and/or upfront or similar fees, shall have (x) the same terms as the Tranche B Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to 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, (Biii) the final maturity date of any Other Term Tranche A Loans shall be no earlier than the Term B Facility Maturity Date then in effect for the Tranche A Revolving Facility Loans, and (C) the Weighted Average Life to Maturity final maturity date of any Other Term Tranche B Loans shall be no shorter earlier than the remaining Weighted Average Life Maturity Date then in effect for the Tranche B Revolving Facility Loans,
(iv) the Other Tranche A Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in comparison to Maturity the Tranche A Revolving Facility Loans in any voluntary or mandatory prepayment or commitment reduction hereunder (except at maturity), and the Other Tranche B Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in comparison to the Tranche B Revolving Facility Loans in any voluntary or mandatory prepayment or commitment reduction hereunder (except at maturity),
(v) the All-in Yield in respect of any Other Tranche A Loans may exceed the All-in Yield in respect of the Term Tranche A Revolving Facility Loans by no more than 0.50% or, if such Other Tranche A Loans do so exceed such All-in Yield for the Tranche A Revolving Facility Loans (such difference, the “Tranche A Yield Differential”), then the Applicable Margin applicable to the Tranche A Revolving Facility Loans shall be increased such that after giving effect to such increase, the Tranche A Yield Differential with respect to the Other Tranche A Loans shall not exceed 0.50%,
(vi) the All-in Yield in respect of any Other Tranche B Loans may exceed the All-in Yield in respect of the Tranche B Revolving Facility Loans by no more than 0.50% or, if such Other Tranche B Loans do so exceed such All-in Yield for the Tranche B Revolving Facility Loans (such difference, the “Tranche B Yield Differential”), then the Applicable Margin applicable to the Tranche B Revolving Facility Loans shall be increased such that after giving effect to such increase, the Tranche B Yield Differential with respect to the Other Tranche B Loans shall not exceed 0.50%,
(vii) at any time prior to the Exit Facility Conversion Date, the Applicable Margin on the Tranche B Revolving Facility Loans and any Other Tranche B Loans will be increased, if necessary, in connection with the creation of any Other Tranche A Loans such that after giving effect to such increase the All-in Yield in respect of the Tranche B Revolving Facility Loans and any Other Tranche B Loans shall be at least equal to the All-in Yield in respect of the Tranche A Revolving Facility Loans and any Other Tranche A Loans, and
(viii) at any time after the Exit Conversion Date, the Applicable Margin on the Tranche B Revolving Facility Loans and any Other Tranche B Loans will be increased, if necessary, in connection with the creation of any Other Tranche A Loans such that after giving effect to such increase the All-in Yield in respect of the Tranche B Revolving Facility Loans and any Other Tranche B Loans shall be at least 0.75% higher than the All-in Yield in respect of the Tranche A Revolving Facility Loans and any Other Tranche A Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.019.08(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 and the Borrower’s consent (not to be unreasonably withheld) Borrowers 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. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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 2.20 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clauses (b) and (c) of Section 5.01(b) 4.01 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 a Responsible Officer of the BorrowerIntermediate Holdings, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, received customary legal opinions, board resolutions and other customary closing certificates and documentation as to the extent required by the relevant Incremental Assumption Agreement and and, to the extent required by the Administrative Agent, consistent with those delivered on the DIP Closing Date under Section 5.02 or the Exit Facility Conversion Date, as applicable, and such additional customary documents and filings (including amendments to the Mortgages and other Security DocumentsDocuments and title endorsement bringdowns) as the Administrative Agent may reasonably require request to assure that the Incremental additional Revolving Facility Loans and and/or the Other Revolving Facility Loans in respect of the Incremental Commitments are secured by the Collateral ratably with (or, to the extent agreed contemplated by the applicable Incremental Lenders in the applicable Incremental Assumption Agreement, junior to) the then existing Term B Revolving Facility Loans and Revolving Credit Commitments, as applicable, (iii) no Default or Event 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 such Incremental Commitment, (x) on or prior to the incurrence of Incremental Loans Exit Facility Conversion Date, Intermediate Holdings and Incremental Commitments) is equal to or less than 3.00:1.00 (assuming its Subsidiaries shall be in the case of any Revolving Credit Commitment Increase that the entire amount thereof is fully drawn) compliance with Section 6.14 and (vy) there after the Exit Facility Conversion Date, Intermediate Holdings and its Subsidiaries shall have been paid to be in compliance with the Administrative Agent, for the account of the Administrative Agent and the Lenders (including any Person becoming Financial Performance Covenant on 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 DatePro Forma Basis.
(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 additional Revolving Facility Loans in respect of Incremental Loans Commitments (other than Other Term Revolving Facility Loans) in the form of additional Term B Loans), when originally made, are included in each Borrowing of outstanding Term Tranche A Revolving Facility Loans or Tranche B Loans Revolving Facility Loans, as applicable, on a pro-pro rata basis. The Borrowers agree that Section 3.05 2.16 shall not apply to any conversion of Eurodollar Eurocurrency Loans or CDOR Rate Loans, as applicable to ABR Rate Loans to Base or Canadian Prime Rate Loans Loans, as applicable, as reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in 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 a Borrower to all Lenders of any Class of Commitments, on a pro rata basis (based on the aggregate outstanding Commitments under such Class) and on the same terms (“Pro Rata Extension Offers”), such Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Commitments of such Class and to otherwise modify the terms of such Lender’s Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Commitments of such Class). On each Increased Amount DateFor the avoidance of doubt, each the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Revolving Facility Commitments, that all of the Revolving Facility Commitments 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 of such Class are the same. Any such extension (an “Extension”) agreed to between such Borrower and any such Lender which is providing (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Commitment for such Lender (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”).
(f) The applicable Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Revolving Facility Commitments; provided, that (i) except as to pricing, fees and final maturity (which shall become be determined by such Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (A) the same terms as an existing Class of Revolving Facility Commitments or (B) have such other terms as shall be reasonably satisfactory to the Administrative Agent and (ii) any Extended Revolving Facility Commitments may participate on a “pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments or commitment reductions 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 Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrowers and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender” for all ’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, such Extending Lender will be deemed to have an Incremental Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), (i) the aggregate amount of Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii) shall haveno Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) any Extending Lender may extend all or any portion of its Revolving Facility Commitment 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 Revolving Facility Commitment), (iv) there shall make an Incremental Term Loan be no condition to any Extension of any Commitment at any time or provide a Revolving Credit Commitment Increase from time to time (other than (x) notice to the Borrower Administrative Agent of such Extension and the terms of the Extended Revolving Facility Commitment implemented thereby and (y) the satisfaction of the conditions set forth in clauses (b) and (c) of Section 4.01 and the receipt by the Administrative Agent of a principal amount equal certificate to that effect dated as of the effective date of the Extension and executed by a Responsible Officer of Intermediate Holdings), (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 Incremental CommitmentExtension with respect to one or more of its Loans and/or Commitments (or a portion thereof), (vi) all Extended Revolving Facility Commitments and such Incremental Loan or Incremental Commitment all obligations in respect thereof shall be a “Loan” or “Commitment” for all purposes Obligations of the relevant Loan Parties under this Agreement and the other Loan DocumentsDocuments that are secured by the Collateral on a pari passu basis with all other Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents and (vii) no Issuing Bank or Swingline Lender shall be obligated to provide Swingline Loans or issue Letters of Credit under such Extended Revolving Facility Commitments beyond the applicable maturity date of the applicable Commitments that were extended by such Extended Revolving Facility Commitments unless it shall have consented thereto.
(ei) Upon each Revolving Credit Commitment Increase Each Extension shall be consummated pursuant to this Sectionprocedures set forth in the corresponding Pro Rata Extension Offer; provided, (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 portion of such Revolving Credit Commitment Increase and (ii) if, on that the date of such Revolving Credit Commitment Increase, there are any Revolving Credit Loans outstanding, applicable Borrower shall cooperate with the Administrative Agent shall take those steps which it deems, in its sole discretion necessary and appropriate prior to result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after giving effect making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating 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 Extension, including, without limitation, timing, rounding 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, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentenceother adjustments.
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Incremental Commitments. (a) The Borrower mayBorrowers and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by written notice executing and delivering to the Administrative Agent from time to time, request Incremental Commitments in Agents an amount not to exceed the Incremental Amount from one or more Incremental 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 Commitments in their own discretion. Such notice shall set forth Increased Facility Activation Notice specifying (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments such increase and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) the date on which such Incremental Commitments are requested to become effective (the “applicable Increased Amount Facility Closing Date”) and (iii) whether such Incremental Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each 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 Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) Revolving Credit 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, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (ii)(A) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the 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 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) 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 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 Credit Commitments, as applicable, (iii) no Default or Event of Default shall have occurred and be Continuing continuing and (ii) each of the representations and warranties made by any Loan Party in or would result therefrompursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (ivi) without the Senior Secured Leverage Ratio (as established consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to a certificate of an Authorized Officer this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Borrower showing Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Senior Secured Leverage Ratio determined Borrowers after the Closing Date. No Lender shall have any obligation to participate in accordance any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with Section 7.07 as the consent of the last day of Parent Borrower and the Fiscal Quarter most recently ended for Administrative Agent (which the financial statements required by Section 6.01(a) or (bconsent shall not be unreasonably withheld), as elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the case may beform of Exhibit H, have been whereupon such bank, financial institution or other entity (or were required to bea “New Lender”) delivered immediately prior to shall become a Lender for all purposes and after giving effect to the incurrence same extent as if originally a party hereto and shall be bound by and entitled to the benefits of Incremental this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans and Incremental Commitments(if any) is in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to or less than 3.00:1.00 such prepayment (assuming in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any Revolving Credit Commitment Increase then outstanding Interest Period(s)), as applicable (as modified hereby); provided that the entire amount thereof is fully drawnwith respect to subclauses (A) and (vB), (x) there the prepayment to, and borrowing from, any existing Lender shall have been paid 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 (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, for so that, after giving effect thereto, the account Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of the Administrative Agent and the such 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 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.
(e) 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 portion of such Revolving Credit Commitment Increase and (ii) 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 result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata share of the revolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increase; provided that ) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any prepayment made in connection with such prepayment. Concurrently therewith, the taking of such steps Lenders shall be accompanied by accrued interest on the Revolving deemed to have adjusted their participation interests in any outstanding Letters of Credit Loans being prepaid and any costs incurred by any Lender so that such interests are held ratably in accordance with Section 3.05their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-pro rata borrowing and pro-pro rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be the transactions effected pursuant to the immediately preceding sentencethis clause (c).
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Sources: Credit Agreement (Colony NorthStar Credit Real Estate, Inc.)