Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement. (b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Appears in 2 contracts
Samples: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Incremental Borrowings. (ai) The Borrower may at At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the Lenders), request to effect one or more increases in the aggregate amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”) from one or more entities that are then Lenders and Additional Revolving Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (A) no Default or Event of Default shall have occurred and be continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (regardless of whether such Financial Performance Covenant is applicable at the time), (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above, (D) the maturity date shall be the Revolving Maturity Date, and such Revolving Commitment Increase shall otherwise be on identical terms (including with respect to security interests and guaranties) to those of the Revolving Commitments pursuant to this Agreement, and (E) any Incremental Revolving Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Lenders providing the applicable Revolving Commitment Increase; provided that no Issuing Bank or Swingline Lender shall be required to act as “issuing bank” or “swingline lender” under any such Revolving Commitment Increase without its written consent. Each Revolving Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof.
(i) At any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available to each of the Lenders), request to effect one or more additional tranches of Loans term loans hereunder or increases in the aggregate amount of the Term Loans, which shall take the form of an additional tranche of term loans hereunder (the each such increase, a “Incremental LoansTerm Commitment Increase”)) from one or more entities that are then Lenders and Additional Term Lenders; provided that (i) at the time of each such request and upon the effectiveness of any each Incremental Amendment referred Term Facility Amendment, (A) subject to belowthe second to last sentence of Section 4.02, no Default or Event of Default shall exist have occurred and be continuing or shall result therefrom (iiB) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans Borrower shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under compliance on a Pro Forma Basis with the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount Financial Performance Covenant recomputed as of the Incremental Loans shall not exceed (A) $200,000,000 in last day of the aggregate pursuant to this clause (A) or (B) at most recently ended fiscal quarter of the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness Borrower for which financial statements are available is less than or equal have been delivered pursuant to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (ASection 5.01(a) or (B), the “Available Incremental Amount”b) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there such Financial Performance Covenant is capacity under clause applicable at such time), (AC) thereof, and if both the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) are available and the Borrower does not make an electionabove, the Borrower will be deemed to have elected together with reasonably detailed calculations demonstrating compliance with clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loansabove, (bD) the maturity date of any term loans incurred pursuant to such Term Commitment Increase shall not mature be earlier than the Original Loan Term Maturity Date and (c) Date, the Weighted Average Life to Maturity of any Incremental such Term Loans incurred pursuant to such Term Commitment Increase shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans and the security interests and guaranties benefiting the loans under such Term Commitment Increase shall be no shorter than that of identical to those benefiting the then-existing LoansTerm Loans incurred on the Effective Date, (dE) the interest rate margins and, subject to clauses clause (b) and (c) aboveD), the amortization schedule applicable for any term loans incurred, pursuant to any Incremental Loans such Term Commitment Increase shall be determined by the Borrower and the lenders thereunder, (e) Lenders providing the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, Term Commitment Increase; provided that in the event that the All-In Yield applicable interest rate margins for any term loans incurred pursuant to such Incremental Term Commitment Increase are higher than the interest rate margins for the Term Loans exceeds incurred on the All-In Yield of any Class of Loans existing at such time Effective Date by more than 50 basis points, then the interest rate margins for each such Class of the Term Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is interest rate margins are equal to the All-In Yield of interest rate margins for such Incremental Loans term loans pursuant to such Term Commitment Increase minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the term loans incurred pursuant to such Term Commitment Increase and the Term Loans incurred on the Effective Date (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the relevant Lenders in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), (fy) customary arrangement or commitment fees payable to any of the representations Joint Bookrunners (or their respective affiliates) in connection with this Agreement or to one or more arrangers (or their affiliates) of any Term Commitment Increase shall be excluded and warranties contained (z) if the Term Commitment Increase includes an interest rate floor greater than the interest rate floor applicable to the Term Loans incurred on the Effective Date, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin for the Term Loans shall be required, to the extent an increase in the Loan Documents interest rate floor in the Term Loans would cause an increase in the interest rate then in effect, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term Loans incurred on the Effective Date shall be accurate in all material respects before increased by such increased amount and after the effectiveness of (F) any Incremental Term Facility Amendment referred shall be on the terms and pursuant to below documentation to be determined by the Borrower and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other the Lenders providing the applicable Term Commitment Increase; provided that to the extent such terms of such Incremental Loans, if and documentation are not consistent with this Agreement (except to the terms of the existing Loansextent permitted by clause (D) or (E) above), they shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans Each Term Commitment Increase shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may participate on a pro rata basis or on a be less than pro rata basis $10,000,000 if such amount represents all the remaining availability under the Incremental Cap.
(but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))ii) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental LoansRevolving Commitment Increase or Term Commitment Increase. Incremental Loans may be made by any existing Lender Notwithstanding anything to contrary herein, the sum of (it being understood that no existing Lender will have an obligation to make a portion i) the aggregate principal amount of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable all the Revolving Commitment Increases established subsequent to the Administrative Agent)Amendment No. 3 Effective Date and (ii) the aggregate principal amount of all Term Commitment Increases established subsequent to the Amendment No. 3 Effective Date shall not exceed the Incremental Cap.
(iii) Commitments in respect of Incremental Loans any Revolving Commitment Increase shall become Commitments (or in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Revolving Lender’s Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, the applicable Lenders and the Administrative Agent. The Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender shall have the right to participate in or, unless it agrees, be obligated to provide, any Revolving Commitment Increase) or by any Additional Revolving Lender. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section 2.12Section. The effectiveness of (and, in the case of any Incremental Revolving Facility Amendment for an Incremental Loanshall, unless otherwise agreed to by the Borrowing under) any Incremental Amendment shall Administrative Agent and the Lenders providing the applicable Revolving Commitment Increase, be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective Incremental Revolving Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent)
(iv) Commitments in respect of any Term Commitment Increase shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, the applicable Lenders and the Administrative Agent. Term Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender shall have any right to participate in or, unless it agrees, be obligated to provide, any Term Commitment Increase) or by any Additional Term Lender. An Incremental Term Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Term Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Lenders providing the applicable Term Commitment Increase, be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Incremental Amendment) and such other conditions as the parties thereto Borrowing” in Section 4.02 shall agree. The Borrower shall use the proceeds of be deemed to refer to the Incremental Loans for any purpose not prohibited Term Facility Closing Date) and, to the extent reasonably requested by this Agreementthe Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(bc) This (i) Upon each Revolving Commitment Increase pursuant to this Section, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal such Revolving Lender’s Applicable Percentage. Any Revolving Loans outstanding immediately prior to the date of such Revolving Commitment Increase that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Loans immediately prior to the date of such Revolving Commitment Increase, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time it will be repaid or refinanced with new Revolving Loans made pursuant to Section 2.12 2.01 in accordance with the Applicable Percentages of the Revolving Lenders after giving effect to the Revolving Commitment Increase; provided, however, that upon the occurrence of any Event of Default, each Revolving Commitment Increase Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other Revolving Lenders so that, after giving effect thereto, all Revolving Loans that are Eurocurrency Loans are held by the Revolving Lenders in accordance with their then-current Applicable Percentages. Any such assignments shall supersede any be effected in accordance with the provisions of Section 9.04; provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 2.11 9.04(b) shall not apply thereto. If there are any ABR Revolving Loans outstanding on the date of such Revolving Commitment Increase, such Loans shall either be prepaid by the Borrower on such date or 10.01 refinanced on such date (subject to satisfaction of applicable borrowing conditions) with Revolving Loans made on such date by the Revolving Lenders (including the Revolving Commitment Increase Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Revolving Commitment Increase Lender will make ABR Revolving Loans to the contraryBorrower by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Revolving Commitment Increase Lender’s Revolving Commitment Increase by the aggregate amount of the Revolving Commitments (after giving effect to the Revolving Commitment Increase on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR Revolving Loans held by the Revolving Lenders other than the Revolving Commitment Increase Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Revolving Commitment Increase Lenders, in such amounts so that, after giving effect thereto, all ABR Revolving Loans will be held by the Revolving Lenders in accordance with their then-current Applicable Percentages. On the date of such Revolving Commitment Increase, the Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the principal amounts of their Revolving Loans being prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 2 contracts
Samples: First Lien Credit Agreement (NEP Group, Inc.), First Lien Credit Agreement (NEP Group, Inc.)
Incremental Borrowings. (a) The After the Eleventh Amendment Effective Date, the Borrower may at any time or from time to time after the Closing Datetime, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request (x) one or more additional tranches incremental senior secured term facilities on the terms set forth below (the “Incremental Term Facilities” and the term loans made thereunder, the “Incremental Term Loans”) and/or (y) one or more incremental senior secured revolving facilities on the terms set forth below (the “Incremental Revolving Facilities” and the revolving loans and other extensions of Loans (credit made thereunder, the “Incremental Revolving Loans;” the Incremental Revolving Facilities, together with the Incremental Term Facilities, the “Incremental Facilities;” the Incremental Revolving Loans, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans Facility shall be in an aggregate principal amount that is not less than $25,000,000 (provided provided, that such amount may be less than $25,000,000 if such amount represents all remaining availability under the applicable limit set forth in the next sentence). Notwithstanding anything to the contrary herein, (i) the aggregate principal amount of all Incremental Term Facilities and all Incremental Equivalent Debt shall not exceed $1,000,000,000 and (ii) the aggregate amount of the all Incremental Loans Revolving Facilities shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to 200,000,000; provided that any Incremental Revolving Facility shall be effectuated as an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) increase of the Available Revolving Facility.
(b) The only conditions to the effectiveness of each series of Incremental Amount regardless Amendment (but not the conditions to the Revolving Lenders and Swing Line Lender making any Revolving Loan or any Swing Line Loan or the Facing Agent issuing any Letter of whether there is capacity under clause Credit) shall be as follows:
(Ai) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) Facility shall rank pari passu in right of payment and of security with the Loans, (bii) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility, no Unmatured Event of Default or Event of Default shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life exist; provided, that with respect to Maturity of any Incremental Loans Facility incurred to finance an Investment permitted to be incurred hereunder, such Incremental Facility may be incurred irrespective of whether an Unmatured Event of Default or Event of Default shall be no shorter than that of the then-existing Loansexist, (diii) subject to clauses (b) and (c) abovethe proviso below, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before immediately prior to, and after giving effect to, the effectiveness incurrence of such Incremental Facility; provided, that with respect to any Incremental Amendment referred Facility incurred to below finance an Investment permitted to be incurred hereunder, such Incremental Facility may be incurred irrespective of whether the representations and warranties required to be made under this clause (iii) are correct (other than with respect to (x) the Specified Representations (with an appropriate modification to the representation and warranty in Section 6.5 such that Solvency is measured as of the consummation of the relevant Incremental Facility) and (gy) if there is an acquisition agreement relating to such Investment, the Target Representations, which representations and warranties in immediately preceding clauses (x) and (y) shall be true and correct in all material respects upon such effectiveness), (iv) the relevant Incremental Facility shall not mature earlier than the maturity date of the Relevant AIY Reference Tranche, (v) the Weighted Average Life to Maturity of the relevant Incremental Facility shall be no shorter than that of the Relevant AIY Reference Tranche, (vi) subject to clauses (iv) and (v) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder, (vii) the Applicable Eurocurrency Margin and the Applicable Base Rate Margin applicable to each Incremental Term Facility will be determined by the Borrower and the lenders providing such Incremental Term Facility; provided that in the event that the All-In Yield applicable to any Incremental Term Facility exceeds the All-In Yield of the Relevant AIY Reference Tranche by more than 50 basis points, then (1) the Applicable Eurocurrency Margin and Applicable Base Rate Margin for the Relevant AIY Reference Tranche shall be automatically increased to the extent necessary so that the All-In Yield of the Relevant AIY Reference Tranche is equal to the All-In Yield of such Incremental Term Facility minus 50 basis points (such increase in the Applicable Eurocurrency Margin and Applicable Base Rate Margin, the “MFN Margin Increase”) and (2) the Applicable Eurocurrency Margin and Applicable Base Rate Margin for each other Term Loan (other than the Relevant AIY Reference Tranche) shall be automatically increased by the MFN Margin Increase; provided, further, that, in the event the Eleventh Amendment Release Date occurs, to the extent the All-In Yield of such Incremental Term Loans is higher than the All-In Yield of the 2014-1 Additional Term Loans due to a Eurocurrency Rate or Base Rate “floor” on such Incremental Term Loan being higher than the “floor” for the Eurocurrency Rate or Base Rate as applied to the 2014-1 Additional Term Loans, such portion of the MFN Margin Increase as applied to the 2014-1 Additional Term Loans so attributable to such higher “floor” shall be effected solely through an increase in any Eurocurrency Rate or Base Rate “floor” applicable to such 2014-1 Additional Term Loans (without reducing the MFN Margin Increase applicable to the other Term Loans), (viii) any Incremental Revolving Facility shall be on identical terms and pursuant to documentation applicable to the Revolving Loan, and (ix) except as otherwise required or permitted in clauses (aii) through (fviii) above, all other terms of such Incremental LoansTerm Facility, if not consistent with the terms of the existing Term Loans, shall be reasonably satisfactory to the Administrative AgentAgent (as evidenced by its execution of the applicable Incremental Amendment). Any Incremental Loans Term Facility may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) as the Term Loans in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. .
(c) Each notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount and proposed terms of the relevant Incremental LoansFacility. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a all or any portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 2.13 and otherwise on terms reasonably acceptable to the Administrative Agent). ; provided that, with respect to any Incremental Revolving Facility, the Administrative Agent, each Facing Agent and the Swing Line Lender shall have consented (in each case, such consent not to be unreasonably withheld, conditioned or delayed) to any Additional Lender or any existing Lender that is not a Revolving Lender as of the Tenth Amendment Effective Date providing all or a portion of such Incremental Revolving Facility if such consent by the Administrative Agent, the applicable Facing Agent and the Swing Line Lender, as the case may be, would be required hereunder, for an assignment of Revolving Loans or Revolving Commitments.
(d) Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. In connection with such Incremental Amendment, the Administrative Agent shall be entitled to request such legal opinions, board resolutions, officers’ certificates, mortgage amendments and other documentation and instruments with respect to the real property collateral, and/or reaffirmation agreements substantially consistent with those delivered on the Ninth Amendment Effective Date (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree2.13. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(be) This Section 2.12 Upon each increase in the Revolving Commitments pursuant to an Incremental Revolving Facility, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each lender providing a portion of the Incremental Revolving Facility (each an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Revolving Lender and (ii) the Incremental Revolving Facility Lenders shall supersede any provisions make such Revolving Loans, and the other Revolving Lenders shall receive such prepayments, as the Administrative Agent shall direct, to cause the Revolving Loans to be made ratably by all the Revolving Lenders immediately after giving effect to such Incremental Revolving Facility. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in Section 2.11 or 10.01 this Agreement shall not apply to the contrarytransactions effected pursuant to the immediately preceding sentence.
Appears in 2 contracts
Samples: Credit Agreement (Huntsman International LLC), Credit Agreement (Huntsman International LLC)
Incremental Borrowings. (a) The Borrower may at (i) At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the Lenders), request to effect one or more additional tranches of Loans term loans hereunder or increases in the aggregate amount of the Term Loans, which shall take the form of an additional tranche of term loans hereunder (the each such increase, a “Incremental LoansTerm Commitment Increase”)) from one or more entities that are then Lenders and Additional Lenders; provided that (i) at the time of each such request and upon the effectiveness of any each Incremental Amendment referred Term Facility Amendment, (A) subject to belowthe last sentence of Section 4.02, no Default or Event of Default shall exist have occurred and be continuing or shall result therefrom (iiB) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans Borrower shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under compliance on a Pro Forma Basis with the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount Financial Covenant Level recomputed as of the Incremental Loans shall not exceed (A) $200,000,000 in last day of the aggregate pursuant to this clause (A) or (B) at most recently ended fiscal quarter of the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness Borrower for which financial statements are available is less than or equal have been delivered pursuant to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (ASection 5.01(a) or (Bb), (C) the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) Borrower shall have delivered a certificate of a Financial Officer to the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both effect set forth in clauses (A) and (B) are available and the Borrower does not make an electionabove, the Borrower will be deemed to have elected together with reasonably detailed calculations demonstrating compliance with clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loansabove, (bD) the maturity date of any term loans incurred pursuant to such Term Commitment Increase shall not mature be earlier than the Original Loan Term Maturity Date and (c) Date, the Weighted Average Life to Maturity of any Incremental such Term Loans incurred pursuant to such Term Commitment Increase shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans and the security interests and guaranties benefiting the loans under such Term Commitment Increase shall be no shorter than that of identical to those benefiting the then-existing LoansTerm Loans incurred on the Effective Date, (dE) the interest rate margins and, subject to clauses clause (b) and (c) aboveD), the amortization schedule applicable for any term loans incurred pursuant to any Incremental Loans such Term Commitment Increase shall be determined by the Borrower and the lenders thereunder, (e) Lenders providing the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, Term Commitment Increase; provided that in the event that the All-In Yield applicable interest rate margins for any term loans incurred pursuant to such Incremental Term Commitment Increase are higher than the interest rate margins for the Term Loans exceeds incurred on the All-In Yield of any Class of Loans existing at such time Effective Date by more than 50 basis points, then the interest rate margins for each such Class of the Term Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is interest rate margins are equal to the All-In Yield of interest rate margins for such Incremental Loans term loans incurred pursuant to such Term Commitment Increase minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the term loans incurred pursuant to such Term Commitment Increase and the Term Loans incurred on the Effective Date (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the relevant Lenders in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), (fy) customary arrangement or commitment fees payable to any of the representations Joint Bookrunners (or their respective affiliates) in connection with this Agreement or to one or more arrangers (or their affiliates) of any Term Commitment Increase shall be excluded and warranties contained (z) if the Term Commitment Increase includes an interest rate floor greater than the interest rate floor applicable to the Term Loans incurred on the Effective Date, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin for the Term Loans shall be required, to the extent an increase in the Loan Documents interest rate floor in the Term Loans would cause an increase in the interest rate then in effect, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term Loans incurred on the Effective Date shall be accurate in all material respects before increased by such increased amount and after the effectiveness of (F) any Incremental Term Facility Amendment referred shall be on the terms and pursuant to below documentation to be determined by the Borrower and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other the Lenders providing the applicable Term Commitment Increase; provided that to the extent such terms of such Incremental Loans, if and documentation are not consistent with this Agreement (except to the terms of the existing Loansextent permitted by clause (D) or (E) above), they shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans Each Term Commitment Increase shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may participate on a pro rata basis or on a be less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary or mandatory prepayments hereunder, as specified in $10,000,000 if such amount represents all the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments remaining availability under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this AgreementCap.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (NEP Group, Inc.), Second Lien Credit Agreement (NEP Group, Inc.)
Incremental Borrowings. (a) The After the Eleventh Amendment Effective Date, the Borrower may at any time or from time to time after the Closing Datetime, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request (x) one or more additional tranches incremental senior secured term facilities on the terms set forth below (the “Incremental Term Facilities” and the term loans made thereunder, the “Incremental Term Loans”) and/or (y) one or more incremental senior secured revolving facilities on the terms set forth below (the “Incremental Revolving Facilities” and the revolving loans and other extensions of Loans (credit made thereunder, the “Incremental Revolving Loans;” the Incremental Revolving Facilities, together with the Incremental Term Facilities, the “Incremental Facilities;” the Incremental Revolving Loans, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans Facility shall be in an aggregate principal amount that is not less than $25,000,000 (provided provided, that such amount may be less than $25,000,000 if such amount represents all remaining availability under the applicable limit set forth in the next sentence). Notwithstanding anything to the contrary herein, (i) the aggregate principal amount of all Incremental Term Facilities and all Incremental Equivalent Debt shall not exceed $1,000,000,000 and (ii) the aggregate amount of the all Incremental Loans Revolving Facilities shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to 200,000,000; provided that any Incremental Revolving Facility shall be effectuated as an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) increase of the Available Revolving Facility.
(b) The only conditions to the effectiveness of each series of Incremental Amount regardless Amendment (but not the conditions to the Revolving Lenders and Swing Line Lender making any Revolving Loan or any Swing Line Loan or the Facing Agent issuing any Letter of whether there is capacity under clause Credit) shall be as follows:
(Ai) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) Facility shall rank pari passu in right of payment and of security with the Loans, (bii) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility, no Unmatured Event of Default or Event of Default shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life exist; provided, that with respect to Maturity of any Incremental Loans Facility incurred to finance an Investment permitted to be incurred hereunder, such Incremental Facility may be incurred irrespective of whether an Unmatured Event of Default or Event of Default shall be no shorter than that of the then-existing Loansexist, (diii) subject to clauses (b) and (c) abovethe proviso below, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before immediately prior to, and after giving effect to, the effectiveness incurrence of such Incremental Facility; provided, that with respect to any Incremental Amendment referred Facility incurred to below finance an Investment permitted to be incurred hereunder, such Incremental Facility may be incurred irrespective of whether the representations and warranties required to be made under this clause (iii) are correct (other than with respect to (x) the Specified Representations (with an appropriate modification to the representation and warranty in Section 6.5 such that Solvency is measured as of the consummation of the relevant Incremental Facility) and (gy) if there is an acquisition agreement relating to such Investment, the Target Representations, which representations and warranties in immediately preceding clauses (x) and (y) shall be true and correct in all material respects upon such effectiveness), (iv) the relevant Incremental Facility shall not mature earlier than the maturity date of the Relevant AIY Reference Tranche (excluding, for the purposes of determining the foregoing maturity dates, any springing maturity dates relating to senior secured notes (except to the extent the security therefor is pari passu with the Incremental Facility), senior unsecured notes or subordinated notes, or equivalent credit facilities), (v) the Weighted Average Life to Maturity of the relevant Incremental Facility shall be no shorter than that of the Relevant AIY Reference Tranche, (vi) subject to clauses (iv) and (v) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder, (vii) the Applicable Eurocurrency Margin and the Applicable Base Rate Margin applicable to each Incremental Term Facility will be determined by the Borrower and the lenders providing such Incremental Term Facility; provided that in the event that the All-In Yield applicable to any Incremental Term Facility exceeds the All-In Yield of the Relevant AIY Reference Tranche by more than 50 basis points, then (1) the Applicable Eurocurrency Margin and Applicable Base Rate Margin for the Relevant AIY Reference Tranche shall be automatically increased to the extent necessary so that the All-In Yield of the Relevant AIY Reference Tranche is equal to the All-In Yield of such Incremental Term Facility minus 50 basis points (such increase in the Applicable Eurocurrency Margin and Applicable Base Rate Margin, the “MFN Margin Increase”) and (2) the Applicable Eurocurrency Margin and Applicable Base Rate Margin for each other Term Loan (other than the Relevant AIY Reference Tranche) shall be automatically increased by the MFN Margin Increase; provided, further, that, to the extent the All-In Yield of such Incremental Term Loans is higher than the All-In Yield of the 2014-1 Additional Term Loans, the 2016 Term B Loans, the 2021 Term B Loans or the 2023 Term B Loans due to a Eurocurrency Rate or Base Rate “floor” on such Incremental Term Loan being higher than the “floor” for the Eurocurrency Rate or Base Rate as applied to the 2014-1 Additional Term Loans, the 2016 Term B Loans, the 2021 Term B Loans or the 2023 Term B Loans, as the case may be, such portion of the MFN Margin Increase as applied to the 2014-1 Additional Term Loans, the 2016 Term B Loans, the 2021 Term B Loans or the 2023 Term B Loans, as the case may be so attributable to such higher “floor” shall be effected solely through an increase in any Eurocurrency Rate or Base Rate “floor” applicable to such 2014-1 Additional Term Loans, the 2016 Term B Loans, the 2021 Term B Loans or the 2023 Term B Loans, as the case may be (without reducing the MFN Margin Increase applicable to the other Term Loans), (viii) any Incremental Revolving Facility shall be on identical terms and pursuant to documentation applicable to the Revolving Loan, and (ix) except as otherwise required or permitted in clauses (aii) through (fviii) above, all other terms of such Incremental LoansTerm Facility, if not consistent with the terms of the existing Term Loans, shall be reasonably satisfactory to the Administrative AgentAgent (as evidenced by its execution of the applicable Incremental Amendment). Any Incremental Loans Term Facility may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) as the Term Loans in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. .
(c) Each notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount and proposed terms of the relevant Incremental LoansFacility. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a all or any portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 2.13 and otherwise on terms reasonably acceptable to the Administrative Agent). ; provided that, with respect to any Incremental Revolving Facility, the Administrative Agent, each Facing Agent and the Swing Line Lender shall have consented (in each case, such consent not to be unreasonably withheld, conditioned or delayed) to any Additional Lender or any existing Lender that is not a Revolving Lender as of the Tenth Amendment Effective Date providing all or a portion of such Incremental Revolving Facility if such consent by the Administrative Agent, the applicable Facing Agent and the Swing Line Lender, as the case may be, would be required hereunder, for an assignment of Revolving Loans or Revolving Commitments.
(d) Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. In connection with such Incremental Amendment, the Administrative Agent shall be entitled to request such legal opinions, board resolutions, officers’ certificates, mortgage amendments and other documentation and instruments with respect to the real property collateral, and/or reaffirmation agreements substantially consistent with those delivered on the Ninth Amendment Effective Date (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree2.13. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(be) This Section 2.12 Upon each increase in the Revolving Commitments pursuant to an Incremental Revolving Facility, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each lender providing a portion of the Incremental Revolving Facility (each an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Revolving Lender and (ii) the Incremental Revolving Facility Lenders shall supersede any provisions make such Revolving Loans, and the other Revolving Lenders shall receive such prepayments, as the Administrative Agent shall direct, to cause the Revolving Loans to be made ratably by all the Revolving Lenders immediately after giving effect to such Incremental Revolving Facility. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in Section 2.11 or 10.01 this Agreement shall not apply to the contrarytransactions effected pursuant to the immediately preceding sentence.
Appears in 2 contracts
Samples: Credit Agreement (Huntsman CORP), Credit Agreement (Huntsman International LLC)
Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (before and after giving effect thereto)to the incurrence of such Incremental Loans, no Default or Event of Default shall exist, (ii) any Incremental Loans will rank pari passu in right of payment with existing Loans and the Liens securing any Incremental Loans will rank pari passu with the Liens securing the existing Loans, (iii) the final maturity date of such Incremental Loans shall be no earlier than the then Latest Maturity Date of any other Loans hereunder, (iv) the Weighted Average Life to Maturity of such Incremental Loans shall not be shorter than that of the then-existing Loans, (v) the representations and warranties contained in Article V or any other Loan Document shall be true and correct in all material respects both before and after the effectiveness of any Incremental Amendment; provided that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects both before and after the effectiveness of any Incremental Amendment, and (vi) the Senior Secured Leverage Ratio shall be no greater than 3.50 to 1.00 as of the end of the Test Period most recently ended after giving Pro Forma Effect to such Incremental Loans and any Acquisition permitted under this Agreement and/or any other transactions related to such Incremental Loans. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans after the Amendment No. 3 Effective Date shall not exceed (A) $200,000,000 in 150,000,000.xx $0. Each notice from the aggregate Borrower pursuant to this clause Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be provided by any existing Lender (Ait being understood that no existing Lender will have an obligation to provide a portion of any Incremental Loans), in each case on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other bank or other financial institution or institutional lender or investor (any such other bank or other financial institution or institutional lender or investor being called an “Additional Lender”), provided that the Administrative Agent shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s providing such Incremental Loans if such consent by the Administrative Agent would be required under Section 12.2(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (Ban “Incremental Amendment”) at to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower’s option, up each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any Person other than the Administrative Agent, the Borrower and the Lenders providing the applicable Incremental Loans, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment and the Borrowing of Incremental Loans hereunder shall be subject to the satisfaction on the date thereof (each, an unlimited amount if“Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.2 (it being understood that all references to “the date of such Loan” or similar language in such Section 4.2 shall be deemed to refer to the effective date of such Incremental Amendment) and the satisfaction of such other conditions (if any) as the parties thereto shall agree and, to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received legal opinions, Board of Director resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date, together with such supplements and/or amendments to the Collateral Documents as the Administrative Agent shall reasonably request (including, in the case of the Mortgages, mortgage amendments and date down endorsements with respect to the applicable title insurance policies. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement. Subject to clauses (iii) and (iv) of the first proviso of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (Ba), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the . The interest rate margin margin, upfront fees and OID applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that that, in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except . Except as otherwise required or permitted in clauses (a) through (f) abovethis Section 2.12, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 12.1 or 10.01 Section 12.7 to the contrary.
Appears in 1 contract
Incremental Borrowings. (a) The After the Tenth Amendment Trigger Date, the Borrower may at any time or from time to time after the Closing Datetime, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request (x) one or more additional tranches incremental senior secured term facilities on the terms set forth below (the “Incremental Term Facilities” and the term loans made thereunder, the “Incremental Term Loans”) and/or (y) one or more incremental senior secured revolving facilities on the terms set forth below (the “Incremental Revolving Facilities” and the revolving loans and other extensions of Loans (credit made thereunder, the “Incremental Revolving Loans;” the Incremental Revolving Facilities, together with the Incremental Term Facilities, the “Incremental Facilities;” the Incremental Revolving Loans, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans Facility shall be in an aggregate principal amount that is not less than $25,000,000 (provided provided, that such amount may be less than $25,000,000 if such amount represents all remaining availability under the applicable limit set forth in the next sentence). Notwithstanding anything to the contrary herein, (i) the aggregate principal amount of all Incremental Term Facilities and all Incremental Equivalent Debt shall not exceed $1,000,000,000 and (ii) the aggregate amount of the all Incremental Loans Revolving Facilities shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to 200,000,000; provided that any Incremental Revolving Facility shall be effectuated as an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) increase of the Available Revolving Facility.
(b) The only conditions to the effectiveness of each series of Incremental Amount regardless Amendment (but not the conditions to the Revolving Lenders and Swing Line Lender making any Revolving Loan or any Swing Line Loan or the Facing Agent issuing any Letter of whether there is capacity under clause Credit) shall be as follows:
(Ai) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) Facility shall rank pari passu in right of payment and of security with the Loans, (bii) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility, no Unmatured Event of Default or Event of Default shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life exist; provided, that with respect to Maturity of any Incremental Loans Facility incurred to finance an Investment permitted to be incurred hereunder, such Incremental Facility may be incurred irrespective of whether an Unmatured Event of Default or Event of Default shall be no shorter than that of the then-existing Loansexist, (diii) subject to clauses (b) and (c) abovethe proviso below, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before immediately prior to, and after giving effect to, the effectiveness incurrence of such Incremental Facility; provided, that with respect to any Incremental Amendment referred Facility incurred to below finance an Investment permitted to be incurred hereunder, such Incremental Facility may be incurred irrespective of whether the representations and warranties required to be made under this clause (iii) are correct (other than with respect to (x) the Specified Representations (with an appropriate modification to the representation and warranty in Section 6.5 such that Solvency is measured as of the consummation of the relevant Incremental Facility) and (gy) if there is an acquisition agreement relating to such Investment, the Target Representations, which representations and warranties in immediately preceding clauses (x) and (y) shall be true and correct in all material respects upon such effectiveness), (iv) the relevant Incremental Facility shall not mature earlier than the maturity date of the Relevant AIY Reference Tranche, (v) the Weighted Average Life to Maturity of the relevant Incremental Facility shall be no shorter than that of the Relevant AIY Reference Tranche, (vi) subject to clauses (iv) and (v) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder, (vii) the Applicable Eurocurrency Margin and the Applicable Base Rate Margin applicable to each Incremental Term Facility will be determined by the Borrower and the lenders providing such Incremental Term Facility; provided that in the event that the All-In Yield applicable to any Incremental Term Facility exceeds the All-In Yield of the Relevant AIY Reference Tranche by more than 50 basis points, then (1) the Applicable Eurocurrency Margin and Applicable Base Rate Margin for the Relevant AIY Reference Tranche shall be automatically increased to the extent necessary so that the All-In Yield of the Relevant AIY Reference Tranche is equal to the All-In Yield of such Incremental Term Facility minus 50 basis points (such increase in the Applicable Eurocurrency Margin and Applicable Base Rate Margin, the “MFN Margin Increase”) and (2) the Applicable Eurocurrency Margin and Applicable Base Rate Margin for each other Term Loan (other than the Relevant AIY Reference Tranche) shall be automatically increased by the MFN Margin Increase; provided, further, that, in the event the Tenth Amendment Funding Date occurs, to the extent the All-In Yield of such Incremental Term Loans is higher than the All-In Yield of the 2013-2 Additional Term Loans due to a Eurocurrency Rate or Base Rate “floor” on such Incremental Term Loan being higher than the “floor” for the Eurocurrency Rate or Base Rate as applied to the 2013-2 Additional Term Loans, such portion of the MFN Margin Increase as applied to the 2013-2 Additional Term Loans so attributable to such higher “floor” shall be effected solely through an increase in any Eurocurrency Rate or Base Rate “floor” applicable to such 2013-2 Additional Term Loans (without reducing the MFN Margin Increase applicable to the other Term Loans), (viii) any Incremental Revolving Facility shall be on identical terms and pursuant to documentation applicable to the Revolving Loan, and (ix) except as otherwise required or permitted in clauses (aii) through (fviii) above, all other terms of such Incremental LoansTerm Facility, if not consistent with the terms of the existing Term Loans, shall be reasonably satisfactory to the Administrative AgentAgent (as evidenced by its execution of the applicable Incremental Amendment). Any Incremental Loans Term Facility may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) as the Term Loans in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. .
(c) Each notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount and proposed terms of the relevant Incremental LoansFacility. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a all or any portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 2.13 and otherwise on terms reasonably acceptable to the Administrative Agent). ; provided that, with respect to any Incremental Revolving Facility, the Administrative Agent, each Facing Agent and the Swing Line Lender shall have consented (in each case, such consent not to be unreasonably withheld, conditioned or delayed) to any Additional Lender or any existing Lender that is not a Revolving Lender as of the Tenth Amendment Effective Date providing all or a portion of such Incremental Revolving Facility if such consent by the Administrative Agent, the applicable Facing Agent and the Swing Line Lender, as the case may be, would be required hereunder, for an assignment of Revolving Loans or Revolving Commitments.
(d) Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. In connection with such Incremental Amendment, the Administrative Agent shall be entitled to request such legal opinions, board resolutions, officers’ certificates, mortgage amendments and other documentation and instruments with respect to the real property collateral, and/or reaffirmation agreements substantially consistent with those delivered on the Ninth Amendment Effective Date (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree2.13. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(be) This Section 2.12 Upon each increase in the Revolving Commitments pursuant to an Incremental Revolving Facility, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each lender providing a portion of the Incremental Revolving Facility (each an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Revolving Lender and (ii) the Incremental Revolving Facility Lenders shall supersede any provisions make such Revolving Loans, and the other Revolving Lenders shall receive such prepayments, as the Administrative Agent shall direct, to cause the Revolving Loans to be made ratably by all the Revolving Lenders immediately after giving effect to such Incremental Revolving Facility. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in Section 2.11 or 10.01 this Agreement shall not apply to the contrarytransactions effected pursuant to the immediately preceding sentence.
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Incremental Borrowings. (a) The Borrower may at At any time or from time to time after the Closing Effective Date and prior to the date that is twelve months prior to the Term Loan Termination Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, so long as no Default or Event of Default shall exist has occurred and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary hereincontinuing, the aggregate amount Borrower may, by delivery of an
(b) [Intentionally Omitted].
(i) For any Incremental Term Loan Facility, the Incremental Loans Borrower shall not exceed (A) $200,000,000 in first, offer each of the aggregate pursuant existing Lenders the opportunity to this clause (A) or provide a pro rata portion of any Incremental Term Loan Facility, (B) at the Borrower’s optionsecond, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for offer each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory Lenders the opportunity to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis provide all or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental LoanTerm Loan Facility not otherwise accepted by the other Lenders (pursuant to clause (A) above), and (C) third, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), offer one or more additional banks, financial institutions or other entities the opportunity to provide all or a portion of such any Incremental Term Loan Facility not accepted by the existing Lenders (each such additional bank, financial institution or other entity herein called a “New Term Loan Lender”); provided that, the minimum amount of Incremental Term Loans under any Additional Incremental Term Loan Facility of any new Term Loan Lender on terms permitted shall be in this Section 2.12 and otherwise on terms reasonably acceptable an amount not less than $5,000,000. Each Incremental Term Loan Facility Notice shall specify which banks, financial institutions or other entities the Borrower desires to provide the portion of such Incremental Term Loan Facility not accepted by the existing Lenders. The Borrower or, if requested by the Borrower, the Administrative Agent). Commitments in respect , will notify the existing Lenders, and, if the existing Lenders do not accept the entire Incremental Term Loan Facility, such banks, financial institutions or other entities offered the opportunity to provide the portion of the Incremental Loans shall Term Loan Facility not accepted by the existing Lenders.
(ii) Each Incremental Term Loan Facility will become Commitments under this Agreement effective pursuant to an amendment to this Agreement (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide Person providing such Commitment, if any, each Additional Lender, if any, Incremental Term Loan Facility and the Administrative Agent. The Incremental Amendment Amendments may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to set forth the amounts, terms and conditions of the related Incremental Term Loan Facility consistent with the terms of this Agreement and to effect the provisions of this Section 2.122.23(c). The Each of the parties hereto hereby agrees that, upon the effectiveness of (and, in the case of any Incremental Amendment for an Incremental LoanAmendment, this Agreement and the Borrowing under) any Incremental Amendment shall other Loan Documents, as applicable, will be subject amended to the satisfaction on extent necessary to reflect the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) existence and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds terms of the Incremental Term Loan Facility and the Incremental Term Loans for any purpose not prohibited by this Agreement.
(b) evidenced thereby. This Section 2.12 2.23 shall supersede any provisions in Section 2.11 2.16 or 10.01 to the contrary.10.1
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Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (before and after giving effect thereto)to the incurrence of such Incremental Loans, no Default or Event of Default shall exist, (ii) any Incremental Loans will rank pari passu in right of payment with existing Loans and the Liens securing any Incremental Loans will rank pari passu with the Liens securing the existing Loans, (iii) the final maturity date of such Incremental Loans shall be no earlier than the then Latest Maturity Date of any other Loans hereunder, (iv) the Weighted Average Life to Maturity of such Incremental Loans shall not be shorter than that of the then-existing Loans, (v) the representations and warranties contained in Article V or any other Loan Document shall be true and correct in all material respects both before and after the effectiveness of any Incremental Amendment; provided that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects both before and after the effectiveness of any Incremental Amendment, and (vi) the Senior Secured Leverage Ratio shall be no greater than 3.50 to 1.00 as of the end of the Test Period most recently ended after giving Pro Forma Effect to such Incremental Loans and any Acquisition permitted under this Agreement and/or any other transactions related to such Incremental Loans. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed (A) $200,000,000 in 150,000,000. Each notice from the aggregate Borrower pursuant to this clause Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be provided by any existing Lender (Ait being understood that no existing Lender will have an obligation to provide a portion of any Incremental Loans), in each case on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other bank or other financial institution or institutional lender or investor (any such other bank or other financial institution or institutional lender or investor being called an “Additional Lender”), provided that the Administrative Agent shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s providing such Incremental Loans if such consent by the Administrative Agent would be required under Section 12.2(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (Ban “Incremental Amendment”) at to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower’s option, up each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any Person other than the Administrative Agent, the Borrower and the Lenders providing the applicable Incremental Loans, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment and the Borrowing of Incremental Loans hereunder shall be subject to the satisfaction on the date thereof (each, an unlimited amount if“Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.2 (it being understood that all references to “the date of such Loan” or similar language in such Section 4.2 shall be deemed to refer to the effective date of such Incremental Amendment) and the satisfaction of such other conditions (if any) as the parties thereto shall agree and, to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received legal opinions, Board of Director resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date, together with such supplements and/or amendments to the Collateral Documents as the Administrative Agent shall reasonably request (including, in the case of the Mortgages, mortgage amendments and date down endorsements with respect to the applicable title insurance policies. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement. Subject to clauses (iii) and (iv) of the first proviso of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (Ba), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the . The interest rate margin margin, upfront fees and OID applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that that, in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except . Except as otherwise required or permitted in clauses (a) through (f) abovethis Section 2.12, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 12.1 or 10.01 Section 12.7 to the contrary.
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Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon that, subject to the effectiveness of any Incremental Amendment referred to belowLimited Condition Acquisition provisions, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default (or, in the case of any Limited Condition Acquisition, no Event of Default under Section 8.01(a) or 8.01(f) as of the Transaction Agreement Date) shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed Loans, when aggregated with (A) $200,000,000 in the aggregate pursuant to this clause amount of Permitted Pari Passu Secured Debt (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available that is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (Anot designated as Credit Agreement Refinancing Indebtedness) and (B) are available and the Borrower does aggregate principal amount of Permitted Ratio Debt incurred in reliance on clauses (x) or (y) of the definition of Maximum Incremental Amount, shall not make an election, exceed the Borrower will be deemed to have elected clause Maximum Incremental Amount.
(B))). a) The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) the Incremental Loans shall not mature earlier than the Original Loan Maturity Date and Date, (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that that, in the event that the All-In Yield applicable to such any Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents Specified Representations shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall either be reasonably satisfactory to the Administrative AgentAgent or not more favorable, taken as a whole, to the lenders providing such Incremental Loans than the terms of the existing Loans (other than with respect to any terms and conditions applicable after the maturity date of the Loans); provided that no such Incremental Loans shall have financial covenants and more restrictive covenants than those contained in this Agreement unless (A) such more restrictive terms are not applicable until after the then Latest Maturity Date or (B) this Agreement is amended in a manner reasonably satisfactory to the Administrative Agent and the Borrower to incorporate such more restrictive provisions for the benefit of the Lenders (which amendment shall not require the consent of any Lender). Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth described in this Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment2.12(a) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
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Incremental Borrowings. (ai) The Prior to the Termination Date, upon the terms and subject to the conditions set forth herein and in the other Transaction Documents,
(x) the Borrower may may, at any its option from time to time, request a borrowing from Sheffield and PARCO (prior to the occurrence of a PARCO Termination Event) and from the PARCO APA Banks (if PARCO has elected not to advance such PARCO Loan or following the occurrence of a PARCO Termination Event); and
(y) Sheffield shall and PARCO may, at its option from time to time (prior to the occurrence of a PARCO Termination Event), and the PARCO APA Banks shall (if PARCO has elected not to advance such PARCO Loan or following the occurrence of a PARCO Termination Event), honor such request for borrowing from the Borrower, such borrowing to be secured by the Collateral (each, an “Incremental Borrowing”); provided, however, that after giving effect to such Incremental Borrowing and the Closing Dateadvance to the Borrower of such Loan Amount, by notice the amount of the Outstanding Loans shall not exceed the Facility Limit; and provided, further, that after giving effect to such Incremental Borrowing and the advance to the Borrower of such Loan Amount, the representations and warranties set forth in Section 3.1 shall be true and correct as of the date of such Incremental Borrowing and the advance to the Borrower of such Loan Amount.
(ii) The Borrower shall deliver to the Administrative Agent by telecopy or telefax a duly completed Notice of Borrowing in respect of each Incremental Borrowing at least three (whereupon 3) Business Days prior to the proposed date of any Incremental Borrowing. The Administrative Agent shall promptly deliver a copy forward such Notice of Borrowing to each Funding Agent as soon as reasonably practicable, in no event later than the close of business of the Lenders), request one or more additional tranches day of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness receipt of any Incremental Amendment referred to below, no Default or Event such Notice of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall existBorrowing. Each tranche of Incremental Loans such notice shall specify (x) the Loan Amount (which shall be at least $3,000,000 or integral multiples of $100,000 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 excess thereof) or, to the contrary herein, extent that the aggregate amount then available unused portion of the Incremental Loans shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available Facility Limit is less than or such amount, such lesser amount equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) such available portion of the Available Facility Limit; (y) the desired date of such Incremental Amount regardless of whether there is capacity under clause Borrowing, which shall be a Business Day; and (Az) thereof, and if both clauses (Athe desired Tranche Period(s) and allocations of the Outstanding Loans of such Incremental Borrowing thereto as required by Section 2.03 (B) are available and the Borrower does not make an electioneach, the Borrower will be deemed to have elected clause (B))a “Notice of Borrowing”). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life to Maturity of any Incremental Loans Borrower shall be no shorter than that limited to a maximum of two (2) Incremental Borrowings in any single calendar month, without prior consent of the then-existing Loans, (d) Administrative Agent. Each Incremental Borrowing shall be subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event a condition precedent that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans Collection Agent shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory have delivered to the Administrative Agent, in form and substance satisfactory to each Funding Agent, a completed Daily Report with respect to the prior Business Day, together with such other additional information as the Administrative Agent, on behalf of each Funding Agent, may reasonably request. Any Each Funding Agent will promptly notify by telephone, confirmed by telecopy or telefax, the Related Lenders of such Funding Agent’s receipt of any Notice of Borrowing and each CP Conduit Lender’s Funding Percentage of the Loan Amount.
(iii) Each notice of proposed Incremental Loans may participate Borrowing shall be irrevocable and binding on a pro rata basis the Borrower, and the Borrower shall, subject to the immediately following sentence, indemnify each Lender against any loss or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary expense incurred by such Lender, either directly or mandatory prepayments hereunderindirectly, as specified in a result of any failure by the applicable Borrower to complete such Incremental AmendmentBorrowing, including, without limitation, any loss or expense incurred by such Lender, either directly or indirectly, by reason of the liquidation or reemployment of funds acquired by such Lender (including, without limitation, funds obtained by issuing Commercial Paper or promissory notes, obtaining deposits as loans from third parties and reemployment of funds) or the Sheffield Assignees, as applicable, to fund such Incremental Borrowing. Each notice from The obligation of the Borrower pursuant to this Section 2.02(a)(iii) shall set forth be payable at such time as funds are actually received by, or are available to, the requested Borrower in excess of funds necessary to pay in full all accrued and payable Interest, Program Fees and Servicing Fees and, to the extent funds are not available to pay such obligations, the claims relating thereto shall not constitute a claim against the Borrower but shall continue to accrue.
(iv) The Borrower shall execute a Revolving Credit Note for the benefit of each Lender. The Loans made by each Lender shall be evidenced by the Revolving Credit Note payable to the order of such Lender. Upon any increase in the Funding Limit of any Lender pursuant to Section 2.19 hereof, the Borrower will immediately deliver to such Lender a new Revolving Credit Note, having a maximum principal amount and proposed terms equal to the amount of such Funding Limit as so increased in exchange for the Revolving Credit Note of such Lender outstanding prior to such increase.
(v) On the Closing Date, each Funding Agent, on behalf of the relevant Incremental LoansRelated Lenders, shall deliver written confirmation to the Administrative Agent of the Loan Amount, the Tranche Period(s) and the Tranche Rate(s) relating to such Loan, and the Administrative Agent shall deliver such confirmation to the Borrower. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion Upon receipt of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable such confirmation, the Borrower shall deliver to the Administrative Agent, acting on behalf of each Funding Agent, the Loan Certificate in the form of Exhibit E hereto (the “Loan Certificate”). Commitments in respect Each Funding Agent shall indicate the amount of the Incremental Loans shall become Commitments under this Agreement pursuant Borrowing and the amount of the Related Lenders’ Incremental Borrowing together with the date thereof on the grid attached to an amendment (an “the Loan Certificate. On the date of each subsequent Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the BorrowerBorrowing, each Lender agreeing Funding Agent shall send written confirmation to provide such Commitment, if any, each Additional Lender, if anythe Administrative Agent, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect Agent shall send such amendments confirmation to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect of the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental LoanLoan Amount, the Tranche Period(s), the Loan Date and the Tranche Rate(s) applicable to such Incremental Borrowing. Each Funding Agent, on behalf of the Related Lenders, shall indicate the amount of the Incremental Borrowing under) any Incremental Amendment shall be subject to the satisfaction on together with the date thereof (eachas well as any decrease in the amount of the Outstanding Loans with respect to the Related Lenders on the Loan Certificate. The Revolving Credit Note and the Loan Certificate shall evidence the Incremental Borrowings. On the day of an Incremental Borrowing, the CP Conduit Lenders or the PARCO APA Banks, as applicable, shall make available to the Borrower’s account at the location indicated in Section 8.03 hereof, in immediately available funds, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer amount equal to the effective date of Loan Amount for such Incremental Amendment) and such other conditions Borrowing made available by the CP Conduit Lenders or the PARCO APA Banks, as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreementapplicable.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
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Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans term loans or increases to an existing tranche of term loans (the “Incremental Term Loans”); provided that (iw) upon at the effectiveness of time that any such Incremental Amendment referred to belowTerm Loan is made, no Default or Event of Default shall exist have occurred and be continuing, except that in the case of Incremental Term Loans incurred to make a Permitted Acquisition or a Permitted Investment, in which case at the time such Incremental Term Loan is made, no Event of Default pursuant to Sections 9.01(a) or (iif) shall have occurred and be continuing, (x) at the time when that any such Incremental Term Loan is made, the representations and warranties of the Borrower and each other Loan Party contained in Article VI or any other Loan Document shall be true and correct in all material respects on and as of such dates, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that to the extent that any representation and warranty is qualified as to “materiality” or “Material Adverse Effect”, such representation and warranty shall be true and correct in all respects on such respective dates, and except that for purposes of this section, the representations and warranties contained in clause (a) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01; provided, further, that, in the case of Incremental Term Loans incurred to make a Permitted Acquisition or a Permitted Investment, such representations and warranties to be made at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything limited to the contrary hereinSpecified Representations and the “acquisition agreement representations” (or similar representations) conformed as appropriate for such transaction; and (y) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer, in detail reasonably satisfactory to the Administrative Agent, demonstrating that the incurrence of such Incremental Term Loans requested does not violate the provisions of the Relative Rights Agreement or the Master Lease. The aggregate amount of the Incremental Term Loans shall not exceed the greater of (Ax)(A) $200,000,000 in the aggregate pursuant to this clause (A) or 500,000,000 and (B) at the Borrower’s option, up to 100% of Consolidated EBITDA plus (y) an unlimited amount ifamount, so long as in the case of this clause (By) only, the Total Borrower has at the time such Incremental Term Loan is made, a Senior Secured Net Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is equal to or less than or equal to 3.75 to 1.00 (3.75:1.00 calculated on a Pro Forma Basis; provided that for purposes of this clause (y), net cash proceeds of Incremental Term Loans incurred at such time shall not be netted against the applicable amount of Consolidated Indebtedness for purposes of such calculation of the Senior Secured Net Leverage Ratio plus (z) the aggregate amount of voluntary prepayments of Term Loans other than from the proceeds of the incurrence of Indebtedness (provided, however, that if amounts incurred under clause (y) are incurred concurrently with the incurrence of Incremental Term Loans under clause (x) and/or (z), the Senior Secured Net Leverage Ratio shall be calculated without giving effect to such amounts incurred in reliance on the foregoing clause (x) and/or (z); provided, further, for the avoidance of doubt, to the extent the proceeds of any Incremental Term Loans are being utilized to repay Indebtedness, such calculations shall give pro forma effect to such repayments) (the applicable amount available under clause clauses (Ax), (y) or and (Bz), the “Available Incremental Amount”) (it being understood that Incremental Loans ). The Borrower may be incurred under elect to use clause (By) of the Available Incremental Amount regardless of whether there is the Borrower has capacity under clauses (x) or (z) of the Available Incremental Amount. Further, the Borrower may elect to use clause (Ay) thereofof the Available Incremental Amount prior to using clause (x) or (z) of the Available Incremental Amount, and if both clauses clause (Ay) and clause (Bx) and/or (z) of the Available Incremental Amount are available and the Borrower does not make an election, then the Borrower will be deemed to have elected to use clause (B))). The y) of the Available Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, Amount.
(b) The Incremental Term Loans shall (i) be on terms and pursuant to documentation to be determined by the Borrower and the Lenders thereunder; provided that, to the extent such terms and documentation (except to the extent permitted by clauses (ii) and (iii) below) are not consistent with this Agreement, they shall be reasonably satisfactory to the Borrower and the Administrative Agent, (ii) (A) not mature earlier than the Original Loan Maturity Date for any outstanding Term Loans and (cB) have a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of any outstanding Term Loans; provided that this clause (ii) shall not apply to up to $150,000,000 of Indebtedness, in the aggregate, in respect of all Incremental Term Loans shall be no shorter than that of the then-existing Loans, (d) subject and any Indebtedness incurred pursuant to clauses (bSection 8.03(u) and (cv) (this clause (ii), the “Maturity and Weighted Average Life to Maturity Limitations”), (iii) only be guaranteed by the Guarantors, (iv) have interest rates and an amortization schedule (subject to clause (ii) above, the amortization schedule ) applicable to any the Incremental Term Loans shall be determined by the Borrower and the lenders Lenders thereunder; provided that, (e) if the interest rate margin applicable Applicable Rate related to any Incremental Term Loans will incurred within twelve (12) months of the Effective Date exceeds the Applicable Rate relating to any outstanding Term Loans immediately prior to the effectiveness of the applicable Incremental Amendment by more than 0.50% per annum, the Applicable Rate relating to such Term Loans shall be determined adjusted to be equal to the Applicable Rate relating to such Incremental Term Loans minus 0.50% per annum; provided, further, that the immediately preceding proviso shall not apply if (x) such Incremental Term Loans mature more than 12 months after the Maturity Date or (y) the aggregate principal amount of such Incremental Term Loans (together with the aggregate principal amount of all other Incremental Term Loans excluded in reliance on this clause (y) and term loan Indebtedness secured on a pari passu basis with the Liens securing the Term Loans pursuant to Section 8.03(u) and (v)) does not exceed $150,000,000 in the aggregate (the provisions under this proviso and the immediately preceding proviso collectively, the “MFN Provisions”); provided, further, that in determining the Applicable Rate for Incremental Term Loans or Term Loans solely for purposes of the two immediately preceding provisos, (w) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) paid by the Borrower to all Lenders (and not any one Lender) providing Term Loans or Incremental Term Loans in the initial primary syndication thereof shall be included and equated to interest (with OID being equated to interest based on an assumed four-year life to maturity), (x) customary arrangement or commitment fees payable to the Joint Book Runners in connection with the Term Loans or to one or more arrangers (or their Affiliates) of the Incremental Term Loans shall be excluded, (y) if the lowest permissible Base Rate is greater than 1.50% per annum and the lowest permissible Eurodollar Rate is greater than 0.50% per annum, in each case the difference between the “floor” and 0.50%, in the case of Eurodollar Rate Loans, and such floor and 1.50% per annum, in the case of Base Rate Loans, shall be equated to Applicable Rate for purposes of the two immediately preceding provisos and (v) the Incremental Term Loans may be secured only by Collateral and may only be secured by either a pari passu or a junior Lien on the Collateral, in each case on terms and pursuant to documentation (including an Acceptable Intercreditor Agreement if applicable) reasonably satisfactory to the Borrower and the lenders providing such Incremental Term Loans; provided that, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations terms and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if documentation are not consistent with this Agreement (except as they relate to maturity, Weighted Average Life to Maturity or interest rates), they shall not be more favorable, taken as a whole (as reasonably determined by the Borrower), to the lenders providing such Incremental Term Loans than the terms of the existing Term Loans (other than with respect to terms and conditions applicable after the maturity of the Term Loans) unless such more favorable terms are added for the benefit of the Term Loans, which shall be reasonably satisfactory to not require the Administrative Agent. Any consent of the Lenders and any such Incremental Term Loans may participate on a pro rata basis or on a less than pro rata basis contain any financial maintenance covenants, so long as such covenants are also added for the benefit of the Lenders, which shall not require consent of the Lenders.
(but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))c) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any an existing Lender (it being understood that and no existing Term Loan Lender will shall have an any obligation to make a portion of any an Incremental Term Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms other bank or other financial institution reasonably acceptable to the Administrative AgentAgent and the Borrower (any such other bank or other financial institution being called an “Additional Lender”). .
(d) Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by HoldingsParent, the Borrower, each Guarantor, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of 2.14 (andincluding, in the case of any Incremental Amendment for an Incremental Loanwithout limitation, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an preserve “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowingfungibility” or similar language to add premiums in respect of existing Term Loans in connection with an increase to such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this AgreementTerm Loans).
(be) This Section 2.12 2.14 shall supersede any provisions in Section 2.11 or 10.01 Sections 2.13 and 11.01 to the contrary.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Ardent Health Partners, LLC)
Incremental Borrowings. (a) The Borrower may at At any time or and from time to time after time, subject to the Closing Dateterms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more additional tranches of term loans and/or increase the principal amount of the Term Loans of an existing Class by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, the “Incremental Facility” and any loans made pursuant to an Incremental Facility, the “Incremental Term Loans”); , provided that (i) at the time of each such request and upon the effectiveness of each Incremental Term Loan Amendment, except to the extent provided in Section 1.09, if the proceeds of any Incremental Amendment referred Facility are being used to belowfinance a Limited Condition Transaction, no Default or Event of Default has occurred and is continuing or shall exist result therefrom. Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Term Loans shall not exceed the sum of (i) the greater of (x) $45,000,000 and (y) 50% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period for which financial statements are available as determined on a Pro Forma Basis (the “Fixed Dollar Incremental Amount”), less the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt incurred and/or issued in reliance on the Fixed Dollar Incremental Amount plus (ii) the amount of any voluntary prepayments of the Term Loans and Permitted Alternative Incremental Facilities Debt secured on a pari passu basis with the Term Loans, the amount paid in Cash in respect of any reduction in the outstanding amount of any Term Loan resulting from any assignment of such Term Loan to (and/or purchase of such Term Loan by) Holdings, the Borrower and/or any of their respective Restricted Subsidiaries, and/or application of any “yank-a-bank” provisions, in each case effected after the Closing Date (it being understood that any prepayment of such Indebtedness with the proceeds of substantially concurrent borrowings of long-term Indebtedness (other than revolving loans) shall not increase the calculation of the amount under this clause (ii)) plus (iii) an unlimited amount so long as, in the case of this clause (iii), after giving effect to such Incremental Facility, (A) in the case of Incremental Facilities secured by a Lien on the Collateral that is pari passu basis with Liens securing the Obligations, the First Lien Leverage Ratio as determined as of the last day of the most recently ended Test Period for which financial statements are available as determined on a Pro Forma Basis would not exceed 3.25:1.00, (B) in the case of Incremental Facilities secured by a Lien on the Collateral that is on a junior basis to the Liens securing the Obligations, the Total Secured Leverage Ratio as determined as of the last day of the most recently ended Test Period for which financial statements are available as determined on a Pro Forma Basis would not exceed 3.25:1.00 and (C) in the case of unsecured Incremental Facilities, either (I) the Total Leverage Ratio as determined as of the last day of the most recently ended Test Period for which financial statements are available as determined on a Pro Forma Basis, would not exceed 4.00:1.00 (as determined on a Pro Forma Basis) or (II) the Interest Coverage Ratio as of the last day of the most recently ended Test Period for which financial statements are available as determined on a Pro Forma Basis, would be at least 2.00:1.00 (amounts incurred under this clause (iii), the “Incremental Incurrence Amount”) (it being understood that for purposes of clause (iii) of this Section 2.14 (a), the cash proceeds of the relevant Incremental Facility (other than cash proceeds not applied promptly for the specified transaction in connection with such incurrence) shall be excluded in calculating the unrestricted cash amount used in determining the First Lien Leverage Ratio, Total Secured Leverage Ratio or Total Leverage Ratio, as applicable) (the amounts described in clauses (i), (ii) and (iii) above, the “Incremental Cap”), (it being understood that, at the Borrower’s election, (I) the Borrower shall be deemed to have used amounts under clause (iii) prior to utilization of amounts under clause (i) or (ii), (II) Loans may be incurred simultaneously under clauses (i), (ii) and (iii), and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under clause (iii) above and then calculating the incurrence under clauses (i) and (ii) above and (III) any portion of any Incremental Facility incurred in reliance on clause (i) and/or (ii) may be reclassified, as the Borrower may elect from time to time, as incurred under clause (iii) to the extent permitted thereunder at the such time when any such Incremental Loan is made (and after giving effect theretoon a Pro Forma Basis), no Default or Event of Default shall exist. Each tranche Incremental Term Loan shall be in an integral multiple of Incremental Loans shall $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000 (5,000,000 in case of Incremental Term Loans, provided that such amount may be less than $25,000,000 the applicable minimum amount if such amount represents all the remaining availability under the limit hereunder as set forth in above: provided further that:
(i) the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) interest rate and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (bii) and (ciii) above, the below) amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Facility or Incremental Term Loans will be determined by the Borrower and the lenders providing such Incremental Facility or Incremental Term Loans; provided that, in the case of Incremental Term Loans or Incremental Facilities denominated in U.S. dollars that are pari passu in right of payment and with respect to security with the Initial Term Loans, provided such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the Initial Term Loans unless the interest rate margin with respect to the Initial Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Loans or Incremental Facility, minus, 0.50%; provided, further, that in determining the event that applicable interest rate: (w) original issue discount or upfront fees paid by the AllBorrower in connection with the Initial Term Loans, as applicable, or such Incremental Facility or Incremental Term Loans (based on a four-In Yield year average life to maturity), shall be included as interest, (x) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or incurred on the Closing Date or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Facility or Incremental Term Loans shall be increased excluded and (y) if such Incremental Facility or Incremental Term Loans include any “LIBOR” interest rate floor greater than that applicable to the existing Term Loans, and such floor is applicable to the Initial Term Loans on the date of determination, such excess amount (and solely such excess amount) shall be equated to interest margin for determining the increase (the terms of this clause (i), the “MFN Provisions”),
(ii) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Maturity Date of the Initial Term Loans,
(iii) the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans;
(iv) any Incremental Facility may rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Initial Term Loans, as applicable, or may be unsecured (and to the extent necessary so that the All-In Yield pari passu or subordinated in right of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required payment or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loanssecurity, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent. Any ),
(v) any Incremental Facility that is pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing Incremental Term Loans and Extended Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Facility elect lesser payments,
(vi) no Incremental Facility may participate be secured by assets other than the Collateral and there shall be no borrowers or guarantors in respect of any Incremental Facility that are not the Borrower or Guarantors, and
(vii) such Incremental Facilities shall be on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments terms and pursuant to Section 2.03(b)(iii)(Bdocumentation to be determined; provided that, to the extent such terms and documentation are not consistent with the this Agreement (except to the extent permitted in clauses (i) through (vi) above)), the terms and conditions of any such Incremental Facility shall be as agreed between the Borrower and the lenders providing any such Incremental Facility.
(b) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Loans may be made by any Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans shall be reasonably satisfactory to the Borrower and the Administrative Agent (it being understood that no any such bank, financial institution, existing Lender will have or other Person being called an obligation to make “Additional Lender”) and, if not already a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans Lender, shall become Commitments a Lender under this Agreement pursuant to an amendment (an “Incremental Term Loan Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The No Incremental Term Loan Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Term Loan Amendment. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. Commitments in respect of any Incremental Term Loans shall become Commitments under this Agreement. An Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section 2.122.14. The effectiveness of (and, in the case proceeds of any Incremental Amendment Term Loans will be used for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions purposes set forth in Section 4.02 (it being understood any Incremental Term Loan Amendment. The Administrative Agent and the Lenders hereby agree that all references to “the date of such Borrowing” or similar language minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in such Section 4.02 this Agreement shall be deemed to refer not apply to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 transactions effected pursuant to the contraryimmediately preceding sentence.
Appears in 1 contract
Samples: Credit Agreement (Cole Haan, Inc.)
Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) subject, in the case of Incremental Loans incurred to fund a Limited Condition Acquisition, to Section 1.08, upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist below and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000 20,000,000 (provided that such amount may be less than $25,000,000 20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans borrowed on any date shall not exceed (Ai) $200,000,000 in 175,000,000 minus the aggregate principal amount of Revolving Commitment Increases incurred in reliance on the Unrestricted ABL Incremental Amount incurred under the ABL Facility prior to such incurrence of Incremental Loans hereunder (the “Unrestricted TL Incremental Amount”) plus (ii) the amount of any voluntary prepayments of the Loans (it being understood that any prepayment of Loans with the proceeds of Indebtedness shall not increase the calculation of the amount under this clause (ii)) plus (iii) unlimited additional amounts so long as, after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Loans and assuming such Incremental Loans are fully drawn), the Secured Net Leverage Ratio as of the last day of the most recently ended Test Period shall not exceed 4.1 to 1.0; provided that, to the extent any additional amounts are being incurred pursuant to this clause (Aiii) or concurrently with amounts incurred pursuant to the Unrestricted TL Incremental Amount in clause (B) i), the Secured Net Leverage Ratio shall be permitted to exceed 4.1 to 1.0 to the extent of such amounts incurred in reliance on the Unrestricted TL Incremental Amount as of the last day of the most recently ended Test Period; provided, further, that, for the avoidance of doubt, Incremental Loans may be incurred at the Borrower’s option, up election pursuant to an unlimited amount if, in the case of this clause (Biii) only, prior to the Total Senior Secured Leverage Ratio for utilization of the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 amounts set forth in clauses (calculated on a Pro Forma Basisi) and (the applicable amount under clause (Aii) or (B), the “Available Incremental Amount”) above (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make such an election, the Borrower Incremental Loans will be deemed to have elected been incurred pursuant to clause (B)iii) prior to clauses (i) and (ii)). The Incremental Loans (a) shall have the same Guarantees as, and shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date maturity date of any Incremental Loans and (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses Exhibit 10.1
(b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement. At the option of Holdings, Holdings and/or Sub Holdco may be co-borrower with the Borrower in respect of any Incremental Loans, and any Incremental Amendment, in addition to effecting amendments to the Loan Documents to effect the provisions of this Section 2.12, including to provide for such co-borrowing, without the consent of any other Lenders, may provide for the transfer of all or any portion of Holdings’ and/or Sub Holdco’s obligations as co-borrower under any such Incremental Loans to the Borrower on the terms set forth therein; provided, however, that, effective upon any such transfer, the Guaranty of Holdings and Sub Holdco shall apply to any such transferred obligations.
(bc) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Appears in 1 contract
Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or 75,000,000 plus (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, if the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) ), $200,000,000 (the applicable amount under clause (A) or (B), the “Available Incremental AmountAvailability”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that with respect to any Incremental Loans made on or prior to the date that is twenty-four (24) months after the Closing Date, in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect 80 J. Crew Term Loan Credit Agreement of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (J Crew Group Inc)
Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist; provided that to the extent the proceeds of any Incremental Loans are to be used to consummate a Permitted Acquisition or similar Investment, this proviso shall be satisfied at the signing (as opposed to closing) of the acquisition agreement relating to such Permitted Acquisition or Investment. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Loans shall not exceed (A) $200,000,000 (which amount shall be reduced by the principal amount of Incremental Loans in the aggregate pursuant to reliance on this clause (A) or and Permitted Incremental Equivalent Debt in reliance on Section 7.03(w), in each case, incurred since the Closing Date) plus (B) at the Borrower’s option, up to an additional unlimited amount ifso long as, in the case of this clause (B), (x) onlyif the Incremental Loans are pari passu in right of payment and security with the Initial Loans, the Total Senior Secured Net First Lien Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma BasisBasis after giving effect to such Incremental Loans and any related transaction (but without netting the proceeds thereof), does not exceed 1.00:1.00 or (y) if the Incremental Loans are junior in right of security to the Initial Loans or unsecured, the Net Total Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available on a Pro Forma Basis after giving effect to such Incremental Loans and any related transactions (but without netting the proceeds thereof), does not exceed 3.00:1.00 (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both amounts described in clauses (A) and (B) are available and the Borrower does not make an electionhereof, the Borrower will be deemed “Incremental Cap”), plus (C) in the case of any Incremental Loans that serve to have elected clause effectively extend the maturity of one or more tranches of existing Loans, an amount equal to the amount of such Loans (B)))plus accrued and unpaid interest, fees and premiums related thereto) subject to such extension. The Incremental Loans (a) shall rank be (i) secured by the Collateral on a pari passu in right basis (but without regard to the control of payment and of security remedies) with the LoansSecured Obligations and shall not be secured by any property or assets of Parent or any Subsidiary other than the Collateral, (ii) secured by the Collateral on a junior basis (including with respect to the control of remedies) with the Secured Obligations and shall not be secured by any property or assets of Parent or any Subsidiary other than the Collateral or (iii) unsecured, and will not be Guaranteed by any Person other than the Guarantors, (b) shall not mature earlier than the Original Loan Maturity Date and Date, (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin All-In Yield applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that with respect to any Incremental Loans that are pari passu in right of payment and security with the Initial Loans, in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of the Initial Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of the Initial Loans shall be increased to the extent necessary so that the All-In Yield of such the Initial Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below below; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates and (g) except as otherwise required or permitted in clauses (a) through (fe) above, all other terms of such Incremental Loans, if not consistent with substantially identical to the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the BorrowerLoan Parties, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in To the case extent the proceeds of any Incremental Amendment for an Incremental LoanLoans are to be used to consummate a Permitted Acquisition or similar Investment, the Borrowing undercondition in clause (f) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an customary “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such BorrowingSungard” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agreelanguage. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Appears in 1 contract
Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the the(a) Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) subject, in the case of Incremental Loans incurred to fund a Limited Condition Acquisition, to Section 1.08, upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist below and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000 20,000,000 (provided that such amount may be less than $25,000,000 20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans borrowed on any date shall not exceed (Ai) $200,000,000 in 175,000,000 minus the aggregate principal amount of Revolving - 79- Exhibit 10.1 Commitment Increases incurred in reliance on the Unrestricted ABL Incremental Amount incurred under the ABL Facility prior to such incurrence of Incremental Loans hereunder (the “Unrestricted TL Incremental Amount”) plus (ii) the amount of any voluntary prepayments of the Loans (it being understood that any prepayment of Loans with the proceeds of Indebtedness shall not increase the calculation of the amount under this clause (ii)) plus (iii) unlimited additional amounts so long as, after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Loans and assuming such Incremental Loans are fully drawn), the Secured Net Leverage Ratio as of the last day of the most recently ended Test Period shall not exceed 4.1 to 1.0; provided that, to the extent any additional amounts are being incurred pursuant to this clause (Aiii) or concurrently with amounts incurred pursuant to the Unrestricted TL Incremental Amount in clause (B) i), the Secured Net Leverage Ratio shall be permitted to exceed 4.1 to 1.0 to the extent of such amounts incurred in reliance on the Unrestricted TL Incremental Amount as of the last day of the most recently ended Test Period; provided, further, that, for the avoidance of doubt, Incremental Loans may be incurred at the Borrower’s option, up election pursuant to an unlimited amount if, in the case of this clause (Biii) only, prior to the Total Senior Secured Leverage Ratio for utilization of the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 amounts set forth in clauses (calculated on a Pro Forma Basisi) and (the applicable amount under clause (Aii) or (B), the “Available Incremental Amount”) above (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make such an election, the Borrower Incremental Loans will be deemed to have elected been incurred pursuant to clause (B)iii) prior to clauses (i) and (ii)). The Incremental Loans (a) shall have the same Guarantees as, and shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date maturity date of any Incremental Loans and (c) the Weighted Average Life to Maturity of any Incremental Loans Loans, in each case, shall be no shorter than that of the then-existing Loans, (dc) subject to clauses (ba) and (cb) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (ed) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that that, in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (fe) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below (although any representations and warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects as of the respective date or for the respective period, as the case may be), subject to customary “SunGard” limitations to the extent the proceeds of any Incremental Amendment are being used to finance a Limited Condition Acquisition, (f) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably) than the Loans and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative AgentAgent (it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Loans to the extent that they apply to periods after the then Latest Maturity Date or are otherwise added for the benefit of the Lenders hereunder). Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and and(b) proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede . At the option of Holdings, Holdings and/or Sub Holdco may be co-borrower with the Borrower in respect of any provisions Incremental Loans, and any Incremental Amendment, in Section 2.11 or 10.01 addition to effecting amendments to the contrary.Loan Documents to effect the provisions of this Section 2.12, including to provide for such co-borrowing, without the consent of any other Lenders, may provide for the transfer of all or any - 80- Exhibit 10.1
Appears in 1 contract
Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing ClosingAmendment No. 1 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed the sum of (AAx) $200,000,000 2070,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (BB)))plus (y) the amount of any repayment of any Loan made by the Borrower pursuant to Sections 2.05(a) and/or (b) after the Amendment No. 1 Effective Date (other than any such repayment made with proceeds of long-term funded Indebtedness (other than revolving Indebtedness)) (the amount described in this clause (y), the “Incremental Repayment Component”). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any anysuch Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such suchany Incremental Loans (other than any Incremental Loan incurred in reliance on the Incremental Repayment Component) exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans (other than any Incremental Loan incurred in reliance on the Incremental Repayment Component) minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below below, and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except basis (except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
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Samples: Credit Agreement (J Crew Group Inc)
Incremental Borrowings. (ai) The Borrower may at At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the Lenders), request to effect one or more increases in the aggregate amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”) from one or more entities that are then Lenders and Additional Revolving Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (A) no Default or Event of Default shall have occurred and be continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis (and assuming the borrowing of the full amount available under such increased Revolving Commitments) with the Financial Performance Covenant recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (regardless of whether such Financial Performance Covenant is applicable at the time), (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above, (D) the maturity date shall be the Revolving Maturity Date, and such Revolving Commitment Increase shall otherwise be on identical terms (including with respect to security interests and guaranties) to those of the Revolving Commitments pursuant to this Agreement, and (E) any Incremental Revolving Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Lenders providing the applicable Revolving Commitment Increase; provided that no Issuing Bank or Swingline Lender shall be required to act as “issuing bank” or “swingline lender” under any such Revolving Commitment Increase without its written consent. Each Revolving Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof.
(i) At any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available to each of the Lenders), request to effect one or more additional tranches of Loans term loans hereunder or increases in the aggregate amount of the Term Loans, which shall take the form of an additional tranche of term loans hereunder (the each such additional tranche or increase, a “Incremental LoansTerm Commitment Increase”)) from one or more entities that are then Lenders and Additional Term Lenders; provided that (i) at the time of each such request and upon the effectiveness of any each Incremental Amendment referred Term Facility Amendment, (A) subject to belowthe last sentence of Section 4.02, no Default or Event of Default shall exist have occurred and be continuing or shall result therefrom, (iiB) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans Borrower shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under compliance on a Pro Forma Basis with the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount Financial Performance Covenant recomputed as of the Incremental Loans shall not exceed (A) $200,000,000 in last day of the aggregate pursuant to this clause (A) or (B) at most recently ended fiscal quarter of the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness Borrower for which financial statements are available is less than or equal have been delivered pursuant to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (ASection 5.01(a) or (B), the “Available Incremental Amount”b) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there such Financial Performance Covenant is capacity under clause applicable at such time), (AC) thereof, and if both the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) are available and the Borrower does not make an electionabove, the Borrower will be deemed to have elected together with reasonably detailed calculations demonstrating compliance with clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loansabove, (bD) the maturity date of any term loans incurred pursuant to such Term Commitment Increase shall not mature be earlier than the Original Loan Latest Maturity Date and (c) Date, the Weighted Average Life to Maturity of any Incremental such Term Loans incurred pursuant to such Term Commitment Increase shall not be shorter than the remaining Weighted Average Life to Maturity of any outstanding Term Loans and the security interests and guaranties benefiting the loans under such Term Commitment Increase shall be no shorter than that of identical to those benefiting the then-existing LoansTerm Loans incurred on the Effective Date, (dE) the interest rate margins and, subject to clauses clause (b) and (c) aboveD), the amortization schedule applicable for any term loans incurred, pursuant to any Incremental Loans such Term Commitment Increase shall be determined by the Borrower and the lenders thereunder, (e) Lenders providing the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, Term Commitment Increase; provided that in the event that the All-In Yield applicable interest rate margins for any term loans incurred pursuant to such Incremental Term Commitment Increase are higher than the interest rate margins for the Term Loans exceeds incurred on the All-In Yield of any Class of Loans existing at such time Effective Date by more than 50 basis points, then the interest rate margins for each such Class of the Term Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is interest rate margins are equal to the All-In Yield of interest rate margins for such Incremental Loans term loans pursuant to such Term Commitment Increase minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the term loans incurred pursuant to such Term Commitment Increase and the Term Loans incurred on the Effective Date (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the relevant Lenders in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), (fy) customary arrangement or commitment fees payable to any of the representations Arrangers (or their respective affiliates) in connection with this Agreement or to one or more arrangers (or their affiliates) of any Term Commitment Increase shall be excluded and warranties contained (z) if the Term Commitment Increase includes an interest rate floor greater than the interest rate floor applicable to the Term Loans incurred on the Effective Date, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin for the Term Loans shall be required, to the extent an increase in the Loan Documents interest rate floor in the Term Loans would cause an increase in the interest rate then in effect, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term Loans incurred on the Effective Date shall be accurate in all material respects before increased by such increased amount and after the effectiveness of (F) any Incremental Term Facility Amendment referred shall be on the terms and pursuant to below documentation to be determined by the Borrower and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other the Lenders providing the applicable Term Commitment Increase; provided that to the extent such terms of such Incremental Loans, if and documentation are not consistent with this Agreement (except to the terms of the existing Loansextent permitted by clause (D) or (E) above), they shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans Each Term Commitment Increase shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may participate on a pro rata basis or on a be less than pro rata basis $10,000,000 if such amount represents all the remaining availability under the Incremental Cap.
(but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))ii) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental LoansRevolving Commitment Increase or Term Commitment Increase. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation Notwithstanding anything to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriatecontrary herein, the sum of (i) the aggregate principal amount of all the Revolving Commitment Increases, (ii) the aggregate principal amount of all Term Commitment Increases and (iii) the aggregate principal amount of all Additional Notes issued (other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing than Additional Notes issued to provide such Commitment, if any, each Additional Lender, if anyrefinance, and in a principal amount not exceeding the Administrative Agent. The Incremental Amendment mayprincipal amount of, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing underAdditional Notes) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of not exceed the Incremental Loans for any purpose not prohibited by this AgreementCap.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
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Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches incremental term facilities (the “Incremental Term Facilities” and the term loans made thereunder, the “Incremental Term Loans”) and/or (ii) one or more increases in the aggregate Revolving Loan Commitments (the “Incremental Revolving Facilities” and the revolving loans and other extensions of Loans (credit made thereunder, the “Incremental Revolving Loans;” the Incremental Revolving Facilities, together with the Incremental Term Facilities, the “Incremental Facilities;” the Incremental Revolving Loans, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans Term Facility shall be in an aggregate principal amount that is not less than $25,000,000 10,000,000 and each Incremental Revolving Facility shall be in an aggregate principal amount that is not less than $5,000,000 (in each case, provided that such amount may be less than $25,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans Facilities shall not exceed (A) $200,000,000 in 50,000,000; provided, that the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does Revolving Facilities shall not make an election, the Borrower will be deemed to have elected clause (B)))exceed $10,000,000. The following shall be the only conditions to the effectiveness of any Incremental Loans Facility: (a) each Incremental Facility shall rank pari passu in right of payment and of security with the Loans, (b) each Incremental Term Facility shall not mature earlier than the Original Loan Latest Maturity Date and Date, (c) the Weighted Average Life to Maturity of any Incremental Loans Term Facility shall be no shorter than that of the then-existing Term Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans Term Facility shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans Term Facility will be determined by the Borrower and the lenders providing such Incremental LoansTerm Facility; provided, provided that in the event that the All-In Yield applicable to such any Incremental Loans Term Facility exceeds the All-In Yield of any Class of the Initial Term Loans existing at such time by more than 50 basis points0.50% per annum, then the interest rate margins for each such Class of the Initial Term Loans shall be automatically increased by an amount equal to the extent necessary so that difference between the All-In Yield of such Loans is equal with respect to the Incremental Term Facility and the All-In In-Yield of such Incremental Loans on the Initial Term Loans, minus 50 basis points0.50% per annum, (f) the representations and warranties contained in the Loan Credit Documents shall be accurate in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) immediately before and after the effectiveness of any Incremental Amendment referred to below and the incurrence of such Incremental Facility, (g) any Incremental Revolving Facility shall be on terms and pursuant to documentation applicable to the Revolving Facility, (h) no Default or Event of Default shall have occurred and be continuing, (i) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 5.02(a) after giving effect thereto (calculated as of the most recent fiscal period for which financial statements have been delivered to the Administrative Agent and Lenders pursuant to Section 5.01(a)(i) or (ii), as applicable), (j) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such any Incremental LoansTerm Facility, if not consistent with the terms of the existing LoansTerm Facility, shall be reasonably satisfactory no more favorable, taken as a whole, to the lenders providing such Incremental Term Facility than those applicable to the Term Facility; provided, that a certificate of a Responsible Officer delivered to the Administrative AgentAgent at least seven (7) Business Days prior to the incurrence of such Incremental Term Facility, together with a reasonably detailed description of the material terms and conditions of such Incremental Term Facility or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (j) shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent notifies the Borrower within three (3) Business Days of the receipt of such certificate that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees) and (k) the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying as to the foregoing. Any Incremental Loans Term Facility may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) as the Term Facility in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section 2.17 shall set forth the requested amount and proposed terms of the relevant Incremental LoansFacility. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender The Borrower will have an obligation to make a portion of seek any Incremental Loan) or by any Facility from existing Lenders and/or from additional banks, financial institutions and other institutional lenders that will become Additional Lender Lenders in connection therewith and on terms permitted in this Section 2.12 2.17 and otherwise on terms reasonably acceptable to the Administrative Agent; provided, that with respect to any Incremental Revolving Facility, the Administrative Agent, each L/C Issuer and the Swing Loan Lender shall consent (in each case, such consent not to be unreasonably withheld or delayed) to each Lender’s or Additional Lender’s providing all or a portion of such Incremental Revolving Facility if such consent by the Administrative Agent, the applicable Issuer and the Swing Loan Lender, as the case may be, would be required under Section 8.05(c) for an assignment of Revolving Loans or Revolving Commitments to such Lender or Additional Lender. For the avoidance of doubt, no Affiliated Lender may provide any Incremental Revolving Facility and any Affiliated Lender that provides any Incremental Term Facility shall be subject to the limitations on Affiliated Lenders set forth in Section 8.05(j) (including the Affiliated Lender Cap). Commitments in respect of any Incremental Loans Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion judgment of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.122.17. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction or waiver on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in this Section 4.02 2.17 and in Section 3.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 3.02 shall be deemed to refer to the effective date of Incremental Facility Closing Date for such Incremental Amendment), unless the condition set forth in Section 3.02(b)(ii) and is otherwise agreed to, consented to or waived by the lenders providing such other conditions as Incremental Facility in accordance with the parties thereto shall agreeterms of this Section 2.17. The Borrower shall use the proceeds of the any Incremental Loans Facility for any purpose not prohibited by this Agreement.
(b) Upon each increase in the Revolving Commitments pursuant to an Incremental Revolving Facility, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each lender providing a portion of the Incremental Revolving Facility (each an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Revolving Lender and (ii) if, on the date of such increase, there are any Revolving Loans outstanding, Revolving Lenders with increased Revolving Commitments shall purchase participations in the existing Revolving Loans such that, after giving effect to such purchase, each Revolving Lender holds its Proportionate Share of such Revolving Loan. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(c) This Section 2.12 2.17 shall supersede any provisions in Section 2.11 2.07 or 10.01 8.04 to the contrary.
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Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that that, subject to the
(ia) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) the Incremental Loans shall not mature earlier than the Original Loan Maturity Date and Date, (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that that, in the event that the All-In Yield applicable to such any Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (fe) the representations and warranties contained in the Loan Documents Specified Representations shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (gf) except as otherwise required or permitted in clauses (a) through (fe) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall either be reasonably satisfactory to the Administrative AgentAgent or not more favorable, taken as a whole, to the lenders providing such Incremental Loans than the terms of the existing Loans (other than with respect to any terms and conditions applicable after the maturity date of the Loans); provided that no such Incremental Loans shall have financial covenants and more restrictive covenants than those contained in this Agreement unless (A) such more restrictive terms are not applicable until after the then Latest Maturity Date or (B) this Agreement is amended in a manner reasonably satisfactory to the Administrative Agent and the Borrower to incorporate such more restrictive provisions for the benefit of the Lenders (which amendment shall not require the consent of any Lender). Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth described in this Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment2.12(a) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
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Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by upon at least 5 Business Days’ notice to the Administrative DIP Agent (whereupon the Administrative DIP Agent shall promptly deliver a copy to each of the Lenders)) and with the consent of the Required DIP Lenders, request one or more additional tranches a Borrowing of Loans (the “Incremental DIP Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to belowthat, no Default or Event of Default shall exist and (ii) at the time when any such Incremental DIP Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental DIP Loans shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans 10,000,000.
(a) The Incremental DIP Loans shall rank pari passu in right of payment and of security with the Initial DIP Loans, (b) the Incremental DIP Loans shall not mature earlier than the Original Loan Maturity Date and Date, (c) the Weighted Average Life to Maturity of any Incremental DIP Loans shall be no shorter than that of the then-existing Initial DIP Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any the Incremental DIP Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then same as the interest rate margins for each such Class of Loans shall be increased margin applicable to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis pointsInitial DIP Term Loans, (fe) the representations and warranties contained set forth in this Agreement and the other Loan Documents shall be accurate true and correct in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not DIP Loans shall have terms consistent with the terms of the existing Initial DIP Loans, shall be ; provided that this Agreement is amended in a manner reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis DIP Agent (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(Bacting at the Direction of the Required DIP Lenders))) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section 2.12 shall set forth the requested amount and proposed terms of the relevant Incremental DIP Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental DIP Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each DIP Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative DIP Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such technical amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative DIP Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an the Incremental DIP Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth described in this Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment2.12(a) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental DIP Loans for any purpose not prohibited by this AgreementAgreement and in accordance with the Approved DIP Budget.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Appears in 1 contract
Samples: Senior Secured Super Priority Debtor in Possession Credit Agreement (JOANN Inc.)
Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by upon at least 5 Business Days’ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)) and with the consent of the Required Lenders, request one or more additional tranches of Loans under this clause (a) of this Section 2.12 (the “Incremental Loans”); provided that (i) upon that, subject to the effectiveness of any Incremental Amendment referred to belowLimited Condition Acquisition provisions, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default (or, in the case of any Limited Condition Acquisition, no Event of Default under Section 8.01(a) or 8.01(f) as of the Transaction Agreement Date) shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 5,000,000 (provided that such amount may be less than $25,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed Loans, when aggregated with (A) $200,000,000 in the aggregate pursuant to this clause amount of Permitted Pari Passu Secured Debt (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available that is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (Anot designated as Credit Agreement Refinancing Indebtedness) and (B) are available and the Borrower does aggregate principal amount of Permitted Ratio Debt shall not make an election, exceed the Borrower will be deemed to have elected clause Maximum Incremental Amount.
(B))). I) The Incremental Loans (a) shall rank pari passu in right of security and pari passu or, with the consent of the Required Lenders, superpriority in right of payment and of security with the Loans, (bII) the Incremental Loans shall not mature earlier than the Original Loan Maturity Date and Date; provided that customary bridge facilities so long as the long-term debt into which any such customary bridge facility is to be converted satisfies the foregoing, (cIII) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (dIV) subject to clauses (bII) and (cIII) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (eV) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that that, in the event that the All-In Yield applicable to such any Incremental Loans that is a Comparable Financing made on or prior to the date which is 18 months after the Closing Date exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (fVI) the representations and warranties contained in the Loan Documents Specified Representations shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (gVII) except as otherwise required or permitted in clauses (aI) through (fVI) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall either be reasonably satisfactory to the Administrative AgentAgent (acting at the Direction of the Required Lenders) or not more favorable, taken as a whole, to the lenders providing such Incremental Loans than the terms of the existing Loans (other than with respect to any terms and conditions applicable after the maturity date of the Loans); provided that no such Incremental Loans shall have financial covenants and more restrictive covenants than those contained in this Agreement unless (A) such more restrictive terms are not applicable until after the then Latest Maturity Date or (B) this Agreement is amended in a manner reasonably satisfactory to the Administrative Agent (acting at the Direction of the Required Lenders) and the Borrower to incorporate such more restrictive provisions for the benefit of the Lenders. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative AgentAgent (acting at the Direction of the Required Lenders). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent (acting at the Direction of the Required Lenders) and the Borrower, to effect the provisions of this Section 2.122.12 (including, without limitation, to implement superpriority payment priority of the Incremental Loans, if applicable). The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth described in this Section 4.02 2.12(a) (it being understood that all references to “including, without limitation, consent of the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental AmendmentRequired Lenders) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) The Borrower may at any time or from time to time after the Closing Date, upon at least 5 Business Days’ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) and with the consent of the Required Lenders, request a Borrowing of Incremental Exit Loans under this clause (b) of this Section 2.12 to be provided by the then-existing Lenders, or by any other financing source approved by the Required Lenders (it being acknowledged that the Required Lenders hereby consent to such Incremental Exit Loans to be provided by the proposed financing source (and/or any of its Affiliates) previously disclosed to the Required Lenders on terms and conditions no less favorable to the Borrower (as determined by the Borrower in its reasonable discretion) than previously disclosed to the Required Lenders); provided, further, that, at the time when any such Incremental Exit Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Exit Loans shall not exceed $10,500,000 (which, shall for the avoidance of doubt not be duplicative of any amounts under the Maximum Incremental Amount).
(I) The Incremental Exit Loans shall rank pari passu in right of payment and of security with the Term Loans, (II) the Incremental Exit Loans shall not mature earlier than the Maturity Date, (III) the Weighted Average Life to Maturity of any Incremental Exit Loans shall be no shorter than that of the Initial Exit Loans, (IV) the interest rate margin applicable to the Incremental Exit Loans will be the same as the interest rate margin applicable to the Term Loans, (V) the representations and warranties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects before and after the effectiveness of any Incremental Amendment and (VI) all other terms of such Incremental Exit Loans shall have terms consistent with the terms of the Term Loans. Each notice from the Borrower pursuant to this Section 2.12(b) shall set forth the requested amount of the Incremental Exit Loans. Commitments in respect of Incremental Exit Loans shall become Commitments under this Agreement pursuant to an Incremental Amendment to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such technical amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12(b). The effectiveness of (and, in the case of any Incremental Amendment for the Incremental Exit Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on such Incremental Facility Closing Date of each of the conditions described in this Section 2.12(b) (including, without limitation, consent of the Required Lenders) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Exit Loans for any purpose not prohibited by this Agreement.
(c) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans borrowed on any date shall not exceed (Ax) $200,000,000 150,000,000 in the aggregate pursuant to this clause (Ax) or (By) at the Borrower’s its option, up to an unlimited amount ifthe amount, in the case of this clause (By) only, that could be incurred without causing the Total Senior Secured Net Leverage Ratio for the Test Period immediately preceding the incurrence as of such Indebtedness for which financial statements are available is less date to be greater than or equal 3.50 to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B)))1.00. The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that with respect to any Incremental Loans made on or prior to the date that is twenty-four (24) months after the Closing Date, in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 4.03 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 4.03 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree; provided, however, that notwithstanding anything to the contrary herein, with respect to any Incremental Loans to finance an acquisition permitted by this Agreement, the condition to the availability or borrowing of such Incremental Loans set forth in Section 4.03(a) may be waived or omitted by the majority of the Lenders lending such Incremental Loans without the consent of any other Lender; provided, that the Specified Representations as they relate to the target of such acquisition (conformed as necessary for such acquisition) may not be waived without the consent of the Required Lenders. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Appears in 1 contract
Incremental Borrowings. (a) The After the Eleventh Amendment Effective Date, the Borrower may at any time or from time to time after the Closing Datetime, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request (x) one or more additional tranches incremental senior secured term facilities on the terms set forth below (the “Incremental Term Facilities” and the term loans made thereunder, the “Incremental Term Loans”) and/or (y) one or more incremental senior secured revolving facilities on the terms set forth below (the “Incremental Revolving Facilities” and the revolving loans and other extensions of Loans (credit made thereunder, the “Incremental Revolving Loans;” the Incremental Revolving Facilities, together with the Incremental Term Facilities, the “Incremental Facilities;” the Incremental Revolving Loans, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans Facility shall be in an aggregate principal amount that is not less than $25,000,000 (provided provided, that such amount may be less than $25,000,000 if such amount represents all remaining availability under the applicable limit set forth in the next sentence). Notwithstanding anything to the contrary herein, (i) the aggregate principal amount of all Incremental Term Facilities and all Incremental Equivalent Debt shall not exceed $1,000,000,000 and (ii) the aggregate amount of the all Incremental Loans Revolving Facilities shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to 200,000,000; provided that any Incremental Revolving Facility shall be effectuated as an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) increase of the Available Revolving Facility.
(b) The only conditions to the effectiveness of each series of Incremental Amount regardless Amendment (but not the conditions to the Revolving Lenders and Swing Line Lender making any Revolving Loan or any Swing Line Loan or the Facing Agent issuing any Letter of whether there is capacity under clause Credit) shall be as follows:
(Ai) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) Facility shall rank pari passu in right of payment and of security with the Loans, (bii) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility, no Unmatured Event of Default or Event of Default shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life exist; provided, that with respect to Maturity of any Incremental Loans Facility incurred to finance an Investment permitted to be incurred hereunder, such Incremental Facility may be incurred irrespective of whether an Unmatured Event of Default or Event of Default shall be no shorter than that of the then-existing Loansexist, (diii) subject to clauses (b) and (c) abovethe proviso below, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before immediately prior to, and after giving effect to, the effectiveness incurrence of such Incremental Facility; provided, that with respect to any Incremental Amendment referred Facility incurred to below finance an Investment permitted to be incurred hereunder, such Incremental Facility may be incurred irrespective of whether the representations and warranties required to be made under this clause (iii) are correct (other than with respect to (x) the Specified Representations (with an appropriate modification to the representation and warranty in Section 6.5 such that Solvency is measured as of the consummation of the relevant Incremental Facility) and (gy) if there is an acquisition agreement relating to such Investment, the Target Representations, which representations and warranties in immediately preceding clauses (x) and (y) shall be true and correct in all material respects upon such effectiveness), (iv) the relevant Incremental Facility shall not mature earlier than the maturity date of the Relevant AIY Reference Tranche, (v) the Weighted Average Life to Maturity of the relevant Incremental Facility shall be no shorter than that of the Relevant AIY Reference Tranche, (vi) subject to clauses (iv) and (v) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder, (vii) the Applicable Eurocurrency Margin and the Applicable Base Rate Margin applicable to each Incremental Term Facility will be determined by the Borrower and the lenders providing such Incremental Term Facility; provided that in the event that the All-In Yield applicable to any Incremental Term Facility exceeds the All-In Yield of the Relevant AIY Reference Tranche by more than 50 basis points, then (1) the Applicable Eurocurrency Margin and Applicable Base Rate Margin for the Relevant AIY Reference Tranche shall be automatically increased to the extent necessary so that the All-In Yield of the Relevant AIY Reference Tranche is equal to the All-In Yield of such Incremental Term Facility minus 50 basis points (such increase in the Applicable Eurocurrency Margin and Applicable Base Rate Margin, the “MFN Margin Increase”) and (2) the Applicable Eurocurrency Margin and Applicable Base Rate Margin for each other Term Loan (other than the Relevant AIY Reference Tranche) shall be automatically increased by the MFN Margin Increase; provided, further, that, to the extent the All-In Yield of such Incremental Term Loans is higher than the All-In Yield of the 2014-1 Additional Term Loans or the 2016 Term B Loans due to a Eurocurrency Rate or Base Rate “floor” on such Incremental Term Loan being higher than the “floor” for the Eurocurrency Rate or Base Rate as applied to the 2014-1 Additional Term Loans or the 2016 Term B Loans, as the case may be, such portion of the MFN Margin Increase as applied to the 2014-1 Additional Term Loans or the 2016 Term B Loans, as the case may be so attributable to such higher “floor” shall be effected solely through an increase in any Eurocurrency Rate or Base Rate “floor” applicable to such 2014-1 Additional Term Loans or the 2016 Term B Loans, as the case may be (without reducing the MFN Margin Increase applicable to the other Term Loans), (viii) any Incremental Revolving Facility shall be on identical terms and pursuant to documentation applicable to the Revolving Loan, and (ix) except as otherwise required or permitted in clauses (aii) through (fviii) above, all other terms of such Incremental LoansTerm Facility, if not consistent with the terms of the existing Term Loans, shall be reasonably satisfactory to the Administrative AgentAgent (as evidenced by its execution of the applicable Incremental Amendment). Any Incremental Loans Term Facility may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) as the Term Loans in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. .
(c) Each notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount and proposed terms of the relevant Incremental LoansFacility. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a all or any portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 2.13 and otherwise on terms reasonably acceptable to the Administrative Agent). ; provided that, with respect to any Incremental Revolving Facility, the Administrative Agent, each Facing Agent and the Swing Line Lender shall have consented (in each case, such consent not to be unreasonably withheld, conditioned or delayed) to any Additional Lender or any existing Lender that is not a Revolving Lender as of the Tenth Amendment Effective Date providing all or a portion of such Incremental Revolving Facility if such consent by the Administrative Agent, the applicable Facing Agent and the Swing Line Lender, as the case may be, would be required hereunder, for an assignment of Revolving Loans or Revolving Commitments.
(d) Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. In connection with such Incremental Amendment, the Administrative Agent shall be entitled to request such legal opinions, board resolutions, officers’ certificates, mortgage amendments and other documentation and instruments with respect to the real property collateral, and/or reaffirmation agreements substantially consistent with those delivered on the Ninth Amendment Effective Date (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree2.13. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(be) This Section 2.12 Upon each increase in the Revolving Commitments pursuant to an Incremental Revolving Facility, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each lender providing a portion of the Incremental Revolving Facility (each an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Revolving Lender and (ii) the Incremental Revolving Facility Lenders shall supersede any provisions make such Revolving Loans, and the other Revolving Lenders shall receive such prepayments, as the Administrative Agent shall direct, to cause the Revolving Loans to be made ratably by all the Revolving Lenders immediately after giving effect to such Incremental Revolving Facility. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in Section 2.11 or 10.01 this Agreement shall not apply to the contrarytransactions effected pursuant to the immediately preceding sentence.
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Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans borrowed on any date shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at amount that could be incurred without causing the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Net Leverage Ratio for the Test Period immediately preceding the incurrence as of such Indebtedness for which financial statements are available is less date to be greater than or equal 3.00 to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B)))1.00. The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that with respect to any Incremental Loans made on or prior to the date that is twenty-four (24) months after the Closing Date, in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
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Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing ClosingAmendment No. 1 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed the sum of (AAx) $200,000,000 2070,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (BB)))plus (y) the amount of any repayment of any Loan made by the Borrower pursuant to Sections 2.05(a) and/or (b) after the Amendment No. 1 Effective Date (other than any such repayment made with proceeds of long-term funded Indebtedness (other than revolving Indebtedness)) (the amount described in this clause (y), the “Incremental Repayment Component”). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any anysuch Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such suchany Incremental Loans (other than any Incremental Loan incurred in reliance on the Incremental Repayment Component) exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans (other than any Incremental Loan incurred in reliance on the Incremental Repayment Component) minus 50 basis points00 xxxxx xxxxxx, (fx) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and 82 J. Crew – A&R Term Loan Credit Agreement 82 WEIL:\96135034\1\54457.0006 after the effectiveness of any Incremental Amendment referred to below below, and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except basis (except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
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Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) subject, in the case of Incremental Loans incurred to fund a Limited Condition Acquisition, to Section 1.08, upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist below and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000 20,000,000 (provided that such amount may be less than $25,000,000 20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans borrowed on any date shall not exceed (Ai) $200,000,000 in 175,000,000 minus the aggregate principal amount of Revolving Commitment Increases incurred in reliance on the Unrestricted ABL Incremental Amount incurred under the ABL Facility prior to such incurrence of Incremental Loans hereunder (the “Unrestricted TL Incremental Amount”) plus (ii) the amount of any voluntary prepayments of the Loans (it being understood that any prepayment of Loans with the proceeds of Indebtedness shall not increase the calculation of the amount under this clause (ii)) plus (iii) unlimited additional amounts so long as, after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Loans and assuming such Incremental Loans are fully drawn), the Secured Net Leverage Ratio as of the last day of the most recently ended Test Period shall not exceed 4.1 to 1.0; provided that, to the extent any additional amounts are being incurred pursuant to this clause (Aiii) or concurrently with amounts incurred pursuant to the Unrestricted TL Incremental Amount in clause (B) i), the Secured Net Leverage Ratio shall be permitted to exceed 4.1 to 1.0 to the extent of such amounts incurred in reliance on the Unrestricted TL Incremental Amount as of the last day of the most recently ended Test Period; provided, further, that, for the avoidance of doubt, Incremental Loans may be incurred at the Borrower’s option, up election pursuant to an unlimited amount if, in the case of this clause (Biii) only, prior to the Total Senior Secured Leverage Ratio for utilization of the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 amounts set forth in clauses (calculated on a Pro Forma Basisi) and (the applicable amount under clause (Aii) or (B), the “Available Incremental Amount”) above (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make such an election, the Borrower Incremental Loans will be deemed to have elected been incurred pursuant to clause (B)iii) prior to clauses (i) and (ii)). The Incremental Loans (a) shall have the same Guarantees as, and shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date maturity date of any Incremental Loans and (c) the Weighted Average Life to Maturity of any Incremental Loans Loans, in each case, shall be no shorter than that of the then-existing Loans, (dc) subject to clauses (ba) and (cb) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (ed) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that that, in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (fe) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below (although any representations and warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects as of the respective date or for the respective period, as the case may be), subject to customary “SunGard” limitations to the extent the proceeds of any Incremental Amendment are being used to finance a Limited Condition Acquisition, (f) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably) than the Loans and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative AgentAgent (it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Loans to the extent that they apply to periods after the then Latest Maturity Date or are otherwise added for the benefit of the Lenders hereunder). Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. .
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement. At the option of Holdings, Holdings and/or Sub Holdco may be co-borrower with the Borrower in respect of any Incremental Loans, and any Incremental Amendment, in addition to effecting amendments to the Loan Documents to effect the provisions of this Section 2.12, including to provide for such co-borrowing, without the consent of any other Lenders, may provide for the transfer of all or any portion of Holdings’ and/or Sub Holdco’s obligations as co-borrower under any such Incremental Loans to the Borrower on the terms set forth therein; provided, however, that, effective upon any such transfer, the Guaranty of Holdings and Sub Holdco shall apply to any such transferred obligations.
(bc) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
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Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans term loans or increases to an existing tranche of term loans (the “Incremental Term Loans”); provided that (iw) upon at the effectiveness of time that any such Incremental Amendment referred to belowTerm Loan is made, no Default or Event of Default shall exist have occurred and be continuing, except that in the case of Incremental Term Loans incurred to make a Permitted Acquisition or a Permitted Investment, in which case at the time such Incremental Term Loan is made, no Event of Default pursuant to Sections 9.01(a) or (iif) shall have occurred and be continuing, (x) at the time when that any such Incremental Term Loan is made, the representations and warranties of the Borrower and each other Loan Party contained in Article VI or any other Loan Document shall be true and correct in all material respects on and as of such dates, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that to the extent that any representation and warranty is qualified as to “materiality” or “Material Adverse Effect”, such representation and warranty shall be true and correct in all respects on such respective dates, and except that for purposes of this section, the representations and warranties contained in clause (a) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01; provided, further, that, in the case of Incremental Term Loans incurred to make a Permitted Acquisition or a Permitted Investment, such representations and warranties to be made at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything limited to the contrary hereinSpecified Representations and the “acquisition agreement representations” (or similar representations) conformed as appropriate for such transaction; and (y) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer, in detail reasonably satisfactory to the Administrative Agent, demonstrating that the incurrence of such Incremental Term Loans requested does not violate the provisions of the Relative Rights Agreement or the Master Lease. The aggregate amount of the Incremental Term Loans shall not exceed the greater of (Ax)(A) $200,000,000 in the aggregate pursuant to this clause (A) or 300,000,000 and (B) at the Borrower’s option, up to 100% of Consolidated EBITDA plus (y) an unlimited amount ifamount, so long as in the case of this clause (By) only, the Total Borrower has at the time such Incremental Term Loan is made, a Senior Secured Net Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is equal to or less than or equal to 3.75 to 1.00 (3.25:1.00 calculated on a Pro Forma Basis; provided that for purposes of this clause (y), net cash proceeds of Incremental Term Loans incurred at such time shall not be netted against the applicable amount of Consolidated Indebtedness for purposes of such calculation of the Senior Secured Net Leverage Ratio plus (z) the aggregate amount of voluntary prepayments of Term Loans other than from the proceeds of the incurrence of Indebtedness (provided, however, that if amounts incurred under clause (y) are incurred concurrently with the incurrence of Incremental Term Loans under clause (x) and/or (z), the Senior Secured Net Leverage Ratio shall be calculated without giving effect to such amounts incurred in reliance on the foregoing clause (x) and/or (z); provided, further, for the avoidance of doubt, to the extent the proceeds of any Incremental Term Loans are being utilized to repay Indebtedness, such calculations shall give pro forma effect to such repayments) (the applicable amount available under clause clauses (Ax), (y) or and (Bz), the “Available Incremental Amount”) (it being understood that Incremental Loans ). The Borrower may be incurred under elect to use clause (By) of the Available Incremental Amount regardless of whether there is the Borrower has capacity under clauses (x) or (z) of the Available Incremental Amount. Further, the Borrower may elect to use clause (Ay) thereofof the Available Incremental Amount prior to using clause (x) or (z) of the Available Incremental Amount, and if both clauses clause (Ay) and clause (Bx) and/or (z) of the Available Incremental Amount are available and the Borrower does not make an election, then the Borrower will be deemed to have elected to use clause (B))). The y) of the Available Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, Amount.
(b) The Incremental Term Loans shall (i) be on terms and pursuant to documentation to be determined by the Borrower and the Lenders thereunder; provided that, to the extent such terms and documentation (except to the extent permitted by clauses (ii) and (iii) below) are not consistent with this Agreement, they shall be reasonably satisfactory to the Borrower and the Administrative Agent, (ii) (A) not mature earlier than the Original Loan Maturity Date for any outstanding Term Loans and (cB) have a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of any outstanding Term Loans; provided that this clause (ii) shall not apply to up to $75,000,000 of Indebtedness, in the aggregate, in respect of all Incremental Term Loans shall be no shorter than that of the then-existing Loans, (d) subject and any Indebtedness incurred pursuant to clauses (bSection 8.03(u) and (cv) (this clause (ii), the “Maturity and Weighted Average Life to Maturity Limitations”), (iii) only be guaranteed by the Guarantors, (iv) have interest rates and an amortization schedule (subject to clause (ii) above, the amortization schedule ) applicable to any the Incremental Term Loans shall be determined by the Borrower and the lenders Lenders thereunder; provided that, (e) if the interest rate margin applicable Applicable Rate related to any Incremental Term Loans will incurred within twenty-four (24) months of the Closing Date exceeds the Applicable Rate relating to any outstanding Term Loans immediately prior to the effectiveness of the applicable Incremental Amendment by more than 0.50% per annum, the Applicable Rate relating to such Term Loans shall be determined adjusted to be equal to the Applicable Rate relating to such Incremental Term Loans minus 0.50% per annum; provided, further, that the immediately preceding proviso shall not apply if (x) such Incremental Term Loans mature more than 24 months after the Maturity Date or (y) the aggregate principal amount of such Incremental Term Loans (together with the aggregate principal amount of all other Incremental Term Loans excluded in reliance on this clause (y) and term loan Indebtedness secured on a pari passu basis with the Liens securing the Term Loans pursuant to Section 8.03(u) and (v)) does not exceed $150,000,000 in the aggregate (the provisions under this proviso and the immediately preceding proviso collectively, the “MFN Provisions”); provided, further, that in determining the Applicable Rate for Incremental Term Loans or Term Loans solely for purposes of the two immediately preceding provisos, (w) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) paid by the Borrower to all Lenders (and not any one Lender) providing Term Loans or Incremental Term Loans in the initial primary syndication thereof shall be included and equated to interest (with OID being equated to interest based on an assumed four-year life to maturity), (x) customary arrangement or commitment fees payable to the Joint Book Runners in connection with the Term Loans or to one or more arrangers (or their Affiliates) of the Incremental Term Loans shall be excluded, (y) if the lowest permissible Base Rate is greater than 2.00% per annum and the lowest permissible Eurodollar Rate is greater than 1.00% per annum, in each case the difference between the “floor” and 1.00%, in the case of Eurodollar Rate Loans, and such floor and 2.00% per annum, in the case of Base Rate Loans, shall be equated to Applicable Rate for purposes of the two immediately preceding provisos and (v) the Incremental Term Loans may be secured only by Collateral and may only be secured by either a pari passu or a junior Lien on the Collateral, in each case on terms and pursuant to documentation (including an Acceptable Intercreditor Agreement if applicable) reasonably satisfactory to the Borrower and the lenders providing such Incremental Term Loans; provided that, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations terms and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if documentation are not consistent with this Agreement (except as they relate to maturity, Weighted Average Life to Maturity or interest rates), they shall not be more favorable, taken as a whole (as reasonably determined by the Borrower), to the lenders providing such Incremental Term Loans than the terms of the existing Term Loans (other than with respect to terms and conditions applicable after the maturity of the Term Loans) unless such more favorable terms are added for the benefit of the Term Loans, which shall be reasonably satisfactory to not require the Administrative Agent. Any consent of the Lenders and any such Incremental Term Loans may participate on a pro rata basis or on a less than pro rata basis contain any financial maintenance covenants, so long as such covenants are also added for the benefit of the Lenders, which shall not require consent of the Lenders.
(but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))c) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any an existing Lender (it being understood that and no existing Term Loan Lender will shall have an any obligation to make a portion of any an Incremental Term Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms other bank or other financial institution reasonably acceptable to the Administrative AgentAgent and the Borrower (any such other bank or other financial institution being called an “Additional Lender”). .
(d) Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by HoldingsParent, the Borrower, each Guarantor, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of 2.14 (andincluding, in the case of any Incremental Amendment for an Incremental Loanwithout limitation, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an preserve “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowingfungibility” or similar language to add premiums in respect of existing Term Loans in connection with an increase to such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this AgreementTerm Loans).
(be) This Section 2.12 2.14 shall supersede any provisions in Section 2.11 or 10.01 Sections 2.13 and 11.01 to the contrary.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Ardent Health Partners, LLC)
Incremental Borrowings. At any time after the Effective Date and prior to the date that is twelve months prior to the Revolving Credit Termination Date, so long as no Default or Event of Default has occurred and is continuing, the Borrower may, (x) by delivery of a Revolving Commitment Increase Notice to the Administrative Agent, which notice shall promptly be copied by the Administrative Agent to each Lender, request an increase in the Total Revolving Credit Commitments pursuant to a Revolving Commitment Increase Notice or (y) by delivery of an Incremental Term Loan Facility Notice to the Administrative Agent, which notice shall promptly be copied by the Administrative Agent to each Lender, add one or more tranches of term loans under the Loan Documents pursuant to an Incremental Term Loan Facility Notice (the “Incremental Term Loan Facilities” and the term loans made thereunder, the “Incremental Term Loans”; each such increase or tranche pursuant to clauses (x) and (y), an “Incremental Facility”). The Borrower may request Incremental Facilities in an aggregate principal amount up to $200,000,000; provided that, (i) each such Revolving Offered Increase Amount shall be in a minimum amount of not less than $25,000,000, (ii) each such Incremental Term Loan Facility shall be in a minimum amount of not less than $75,000,000 and (iii) at no time shall the Total Revolving Credit Commitments (as so increased) together with the aggregate principal amount of the Increment Term Loan Facilities exceed $450,000,000.
(a) (%3) For any increase of the Total Revolving Credit Commitments, the Borrower shall (A) first, offer each of the Revolving Credit Lenders the opportunity to provide a pro rata portion of any Revolving Offered Increase Amount pursuant to Section 2.23(b)(iii) below, (B) second, offer each of the Revolving Credit Lenders the opportunity to provide all or a portion of any Revolving Offered Increase Amount not otherwise accepted by the other Revolving Credit Lenders (pursuant to clause (A) above) pursuant to Section 2.23(b)(ii) below and (C) third, with the consent of each Issuing Lender, each Swing Line Lender and the Administrative Agent (which consent shall not be unreasonably withheld), offer one or more additional banks, financial institutions or other entities the opportunity to provide all or a portion of such Revolving Offered Increase Amount not accepted by the Revolving Credit Lenders pursuant to Section 2.23(b)(ii) below. Each Revolving Commitment Increase Notice shall specify which banks, financial institutions or other entities the Borrower desires to provide such Revolving Offered Increase Amount not accepted by the Revolving Credit Lenders. The Borrower may at or, if requested by the Borrower, the Administrative Agent, will notify the Revolving Credit Lenders, and, if the Revolving Credit Lenders do not accept the entire Revolving Offered Increase Amount, such banks, financial institutions or other entities offered the opportunity to provide the portion of the Revolving Offered Increase Amount not accepted by the Revolving Credit Lenders.
(i) Any additional bank, financial institution or other entity that the Borrower selects to offer participation in any time increased Total Revolving Credit Commitments and that elects to become a party to this Agreement and provide a Revolving Credit Commitment in an amount so offered and accepted by it pursuant to Section 2.23(b)(i) shall execute a New Lender Supplement substantially in the form of Exhibit I, with the Borrower, each Issuing Lender, each Swing Line Lender and the Administrative Agent, whereupon such bank, financial institution or from time other entity (herein called a “New Revolving Credit Lender”) shall become a Revolving Credit Lender for all purposes and to time after the Closing same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, provided that, the Revolving Credit Commitment of any such New Revolving Credit Lender shall be in an amount not less than $5,000,000.
(ii) Any Revolving Credit Lender that accepts an offer to it by the Borrower to increase its Revolving Credit Commitment pursuant to Section 2.23(b)(i) shall, in each case, execute a Commitment Increase Supplement substantially in the form of Exhibit J (each, a “Commitment Increase Supplement”), with the Borrower, each Issuing Lender, each Swing Line Lender and the Administrative Agent, whereupon such Revolving Credit Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Revolving Credit Commitment as so increased.
(iii) On any Revolving Credit Increase Effective Date, by notice (A) each bank, financial institution or other entity that is a New Revolving Credit Lender pursuant Section 2.23(b)(ii) or any Revolving Credit Lender that has increased its Revolving Credit Commitment pursuant to Section 2.23(b)(iii) shall make available to the Administrative Agent (whereupon such amounts in immediately available funds as the Administrative Agent shall promptly deliver a copy to each determine, for the benefit of the other relevant Revolving Credit Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other relevant Revolving Credit Lenders, each Revolving Credit Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Percentage of such Revolving Credit Loans and (B) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans of all the Revolving Credit Lenders to equal its Revolving Credit Percentage of such outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower in accordance with the requirements of Section 2.2), request one or more additional tranches . The deemed payments made pursuant to clause (B) of Loans the immediately preceding sentence in respect of each Eurodollar Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.19 if the deemed payment occurs other than on the last day of the related Interest Periods.
(iv) The increase in the Revolving Credit Commitments provided pursuant to this Section 2.23 shall be effective on the date (the “Incremental LoansRevolving Credit Increase Effective Date”)) the Administrative Agent receives satisfactory legal opinions, board resolutions and other closing documents deemed reasonably necessary by the Administrative Agent in connection with such increase; provided that that, immediately prior to and after giving effect to such increase, (iA) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist have occurred and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto)be continuing, no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) each of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available REIT and the Borrower does not make an electionis in pro forma compliance with Section 7.1, such determination of pro forma compliance to be based on the Borrower will be deemed to have elected clause (B))). The Incremental then outstanding principal amount of Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (cC) the Weighted Average Life to Maturity each of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained made by any Loan Party in or pursuant to the Loan Documents shall be accurate true and correct in all material respects before on and after as of such date as if made on and as of such date, provided that, (x) to the effectiveness extent that any such representation or warranty relates to a specific earlier date, they shall be true and correct as of any Incremental Amendment referred such earlier date, (y) to below the extent that such representation or warranty relates to a Borrowing Base Property being removed from the Borrowing Base, the representation and warranties shall be true and correct without regard to such removed Borrowing Base Property and (gz) except to the extent that any representation and warranty that is qualified as otherwise required to “materiality”, “Material Adverse Effect” or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, similar language shall be reasonably satisfactory to true and correct in all respects on such respective dates. For the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary or mandatory prepayments hereunderavoidance of doubt, as specified no increase in the applicable Incremental Amendment. Each notice from the Borrower Revolving Credit Commitments pursuant to this Section 2.23 shall set forth require, as a condition to its effectiveness, the requested amount and proposed terms signature of, or any consent or approval from, any Lender that is not obligated to increase its Revolving Credit Commitments pursuant to a Commitment Increase Supplement.
(a) (b) For any Incremental Term Loan Facility, the Borrower shall (A) first, offer each of the relevant Revolving Credit Lenders the opportunity to provide a pro rata portion of any Incremental Loans. Incremental Loans may be made by any existing Lender Term Loan Facility, (it being understood that no existing Lender will have an obligation B) second, offer each of the Revolving Credit Lenders the opportunity to make provide all or a portion of any Incremental LoanTerm Loan Facility not otherwise accepted by the other Revolving Credit Lenders (pursuant to clause (A) above) and (C) third, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), offer one or more additional banks, financial institutions or other entities the opportunity to provide all or a portion of such any Incremental Term Loan Facility not accepted by the Revolving Credit Lenders (herein called a “New Term Loan Lender”), provided that, the minimum amount of Incremental Term Loans under any Additional Incremental Term Loan Facility of any new Term Loan Lender on terms permitted shall be in this Section 2.12 and otherwise on terms reasonably acceptable an amount not less than $5,000,000. Each Incremental Term Loan Facility Notice shall specify which banks, financial institutions or other entities the Borrower desires to provide the portion of such Incremental Term Loan Facility not accepted by the Revolving Credit Lenders. The Borrower or, if requested by the Borrower, the Administrative Agent). Commitments in respect , will notify the Revolving Credit Lenders, and, if the Revolving Credit Lenders do not accept the entire Incremental Term Loan Facility, such banks, financial institutions or other entities offered the opportunity to provide the portion of the Incremental Loans shall Term Loan Facility not accepted by the Revolving Credit Lenders.
(i) Each Incremental Term Loan Facility will become Commitments under this Agreement effective pursuant to an amendment to this Agreement (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide Person providing such Commitment, if any, each Additional Lender, if any, Incremental Term Loan Facility and the Administrative Agent. The Incremental Amendment Amendments may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to set forth the amounts, terms and conditions of the related Incremental Term Loan Facility consistent with the terms of this Agreement and to effect the provisions of this Section 2.122.23(c), provided that, the first Incremental Amendment after the 2018 Amendment Agreement Effective Date may amend and restate this Agreement to reflect the addition of a term loan facility on a pari passu basis with the Revolving Credit Loans without requiring the consent of any Revolving Credit Lender so long as the terms of such amendment and restatement do not adversely affect the Revolving Credit Lenders. The Each of the parties hereto hereby agrees that, upon the effectiveness of (and, in the case of any Incremental Amendment for an Incremental LoanAmendment, this Agreement and the Borrowing under) any Incremental Amendment shall other Loan Documents, as applicable, will be subject amended to the satisfaction on extent necessary to reflect the date thereof (each, an “existence and terms of the Incremental Facility Closing Date”) of each of and the conditions set forth Incremental Term Loans evidenced thereby. This Section 2.23 shall supersede any provisions in Section 4.02 (it being understood that all references to “the date of such Borrowing” 2.16 or similar language in such Section 4.02 shall be deemed to refer 10.1 to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agreecontrary. The Borrower shall may use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement.
(bii) This Section 2.12 Each Incremental Amendment will set forth the amount and terms of the relevant Incremental Term Loan Facility. The terms of each Incremental Term Loan Facility will be as agreed between the Borrower and the Persons providing such Incremental Facility; provided that:
(A) the final maturity date of any such Incremental Term Loans will be no earlier than the date that is one year after the Revolving Credit Termination Date then in effect;
(B) no Incremental Term Loan Facility shall supersede be guaranteed by any provisions in Section 2.11 or 10.01 Person other than a Guarantor;
(C) any Incremental Term Loan Facility shall be on terms and conditions that are substantially identical to, or, taken as a whole, not materially more favorable to the contrarylenders or holders providing such Incremental Term Loan Facility than, those applicable to the Revolving Credit Loans, as determined in good faith by a Responsible Officer of the Borrower in its reasonable judgment (except (x) for covenants applicable only to periods after the Revolving Credit Termination Date at the time of incurrence and (y) any term or condition to the extent such term or condition is also added for the benefit of the Lenders under the Revolving Credit Loans); provided that, this clause (C) will not apply to (1) terms addressed in the other clauses of this Section 2.23(c), (2) interest rate, fees, funding discounts and other pricing terms, (3) redemption, prepayment or other premiums, and (4) optional prepayment or redemption terms.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Chatham Lodging Trust)
Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing ClosingAmendmentAmendment No. 2 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon that, subject to the effectiveness of any Incremental Amendment referred to belowLimited Condition Acquisition provisions, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default (or, in the case of any Limited Condition Acquisition, no Event of Default under Section 8.01(a) or 8.01(f) as of the Transaction Agreement Date) shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed Loans, when aggregated with (A) $200,000,000 in the aggregate pursuant to this clause amount of Permitted Pari Passu Secured Debt (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available that is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (Anot designated as Credit Agreement Refinancing Indebtedness) and (B) are available and the Borrower does aggregate principal amount of Permitted Ratio Debt incurred in reliance on clauses (x) or (y) of the definition of Maximum Incremental Amount, shall not make an election, exceed the Borrower will be deemed to have elected clause Maximum Incremental Amount.
(B))). a) The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) the Incremental Loans shall not mature earlier than the Original Loan Maturity Date Date, (c)Maturity Date; provided that (x) customary bridge facilities so long as the long-term debt into which any such customary bridge facility is to be converted satisfies the foregoing and (y) up to the greater of an amount, when aggregated with the amount of all other indebtedness incurred in reliance on the Inside Maturity Exception, equal to (1) $180 million and (2) 50% of Consolidated EBITDA for the most recent Test Period determined on a Pro Forma Basis (the “Inside Maturity Exception”) may have a maturity date that is earlier than the final maturity of the Term Facility, (c) subject to the Inside Maturity Exception, the Weighted Average Life to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that that, in the event that the All-In Yield applicable to such any Incremental Loans that is a Comparable Financing (other than any Excluded Incremental Facility) made on or prior to the date which is 18 months after the Amendment No. 2 Effective Date exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents Specified Representations shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall either be reasonably satisfactory to the Administrative AgentAgent or not more favorable, taken as a whole, to the lenders providing such Incremental Loans than the terms of the existing Loans (other than with respect to any terms and conditions applicable after the maturity date of the Loans); provided that no such Incremental Loans shall have financial covenants and more restrictive covenants than those contained in this Agreement unless (A) such more restrictive terms are not applicable until after the then Latest Maturity Date or (B) this Agreement is amended in a manner reasonably satisfactory to the Administrative Agent and the Borrower to incorporate such more restrictive provisions for the benefit of the Lenders (which amendment shall not require the consent of any Lender). Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but but, except for Incremental Loans incurred in reliance on the Inside Maturity Exception, not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth described in this Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment2.12(a) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Incremental Borrowings. (a) The Borrower may at At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make such notice available to each of the Lenders), request to effect one or more increases in the aggregate amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”) from one or more entities that are then Lenders and Additional Revolving Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (i) no Default or Event of Default shall have occurred and be continuing or shall result therefrom, (ii) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clause (i) above, (iii) the maturity date shall be the Revolving Maturity Date, and such Revolving Commitment Increase shall otherwise be on identical terms (including with respect to security interests and guaranties) to those of the Revolving Commitments pursuant to this Agreement, and (iv) any Incremental Revolving Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Lenders providing the applicable Revolving Commitment Increase; provided that no Issuing Bank or Swingline Lender shall be required to act as “issuing bank” or “swingline lender” under any such Revolving Commitment Increase without its written consent. Each Revolving Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof.
(b) At any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make such notice available to each of the Lenders), request to effect one or more additional tranches of Loans term loans hereunder or increases in the aggregate amount of the Term Loans, which shall take the form of an additional tranche of term loans hereunder or an increase in an existing tranche of term loans hereunder (the each such additional tranche or increase, a “Incremental LoansTerm Commitment Increase”)) from one or more entities that are then Lenders and Additional Term Lenders; provided that (i) at the time of each such request and upon the effectiveness of any each Incremental Amendment referred Term Facility Amendment, (i) subject to belowthe last sentence of Section 4.02, no Default or Event of Default shall exist have occurred and be continuing or shall result therefrom, (ii) at the time when any such Incremental Loan is made (and after giving Borrower shall have delivered a certificate of a Financial Officer to the effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in clause (i) above, (iii) the next sentence). Notwithstanding anything maturity date of any term loans incurred pursuant to the contrary herein, the aggregate amount of the Incremental Loans such Term Commitment Increase shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Latest Maturity Date and (c) Date, the Weighted Average Life to Maturity of any Incremental such term loans incurred pursuant to such Term Commitment Increase shall not be shorter than the remaining Weighted Average Life to Maturity of any outstanding Term Loans and the security interests and guaranties benefiting the term loans under such Term Commitment Increase shall be no shorter than that of the then-existing identical to those benefiting any outstanding Term Loans, (div) the interest rate, interest rate margins, rate floors, upfront fees, funding discount, original issue discount, prepayment terms and premiums and, subject to clauses clause (b) and (c) aboveiii), the amortization schedule applicable for any term loans incurred pursuant to any Incremental Loans such Term Commitment Increase shall be determined by the Borrower and the lenders thereunder, (e) Lenders providing the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, Term Commitment Increase; provided that in the event that the All-In Yield applicable interest rate margins for any term loans incurred pursuant to such Incremental Term Commitment Increase (determined as of the date of incurrence of such term loans) are higher than the interest rate margins for the Term Loans exceeds incurred on the All-In Yield Effective Date (determined as of such date (giving effect to any Class of amendments to the Applicable Rate for such Term Loans existing at that become effective subsequent to the Effective Date but prior to such time date, but excluding the effect to any increase in interest rate margins with respect thereto pursuant to this clause (iv)) by more than 50 basis points, then the interest rate margins for each such Class of the Term Loans incurred on the Effective Date shall be increased to the extent necessary so that the All-In Yield of such Loans is interest rate margins are equal to the All-In Yield of interest rate margins for such Incremental Loans term loans pursuant to such Term Commitment Increase minus 50 basis points; provided further, that, in determining the interest rate margins applicable to the term loans incurred pursuant to such Term Commitment Increase and the Term Loans incurred on or prior to the Effective Date (A) OID or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the relevant Lenders in the primary syndication thereof shall be included (with OID being equated to interest rate margins based on an assumed four-year life to maturity), (fB) customary arrangement or commitment fees payable to any of the representations Arrangers (or their respective affiliates) in connection with this Agreement or to one or more arrangers (or their affiliates) of any Term Commitment Increase shall be excluded and warranties contained (C) if the term loans incurred pursuant to such Term Commitment Increase include an interest rate floor greater than the interest rate floor applicable to the Term Loans incurred on the Effective Date, such increased amount shall be equated to interest rate margins for purposes of determining whether an increase to the applicable interest rate margins for the Term Loans incurred on the Effective Date shall be required, to the extent an increase in the Loan Documents interest rate floor for the Term Loans incurred on the Effective Date would cause an increase in the interest rate then in effect, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term Loans incurred on the Effective Date shall be accurate in all material respects before increased by such increased amount, and after the effectiveness of (v) any Incremental Term Facility Amendment referred shall be on the terms and pursuant to below documentation to be determined by the Borrower and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other the Lenders providing the applicable Term Commitment Increase; provided that to the extent such terms of such Incremental Loans, if and documentation are not consistent with this Agreement (except to the terms of the existing Loansextent permitted by clause (iii) or (iv) above), they shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans Each Term Commitment Increase shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may participate on a pro rata basis or on a be less than pro rata basis $10,000,000 if such amount represents all the remaining availability under the Incremental Cap.
(but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))c) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental LoansRevolving Commitment Increase or Term Commitment Increase. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation Notwithstanding anything to make a portion contrary herein, the aggregate principal amount of any Revolving Commitment Increases or any Term Commitment Increases may not exceed the Incremental LoanCap at the time of effectiveness thereof.
(d) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans any Revolving Commitment Increase shall become Commitments (or in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Revolving Lender’s Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, the applicable Lenders and the Administrative Agent. The Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender shall have the right to participate in or, unless it agrees, be obligated to provide, any Revolving Commitment Increase) or by any Additional Revolving Lender. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section 2.12Section. The effectiveness of (and, in the case of any Incremental Revolving Facility Amendment for an Incremental Loanshall, unless otherwise agreed to by the Borrowing under) any Incremental Amendment shall Administrative Agent and the Lenders providing the applicable Revolving Commitment Increase, be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective Incremental Revolving Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(e) Commitments in respect of any Term Commitment Increase shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, the applicable Lenders and the Administrative Agent. Term Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender shall have any right to participate in or, unless it agrees, be obligated to provide, any Term Commitment Increase) or by any Additional Term Lender. An Incremental Term Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Term Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Lenders providing the applicable Term Commitment Increase, be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Incremental Amendment) and such other conditions as the parties thereto Borrowing” in Section 4.02 shall agree. The Borrower shall use the proceeds of be deemed to refer to the Incremental Loans for any purpose not prohibited Term Facility Closing Date) and, to the extent reasonably requested by this Agreementthe Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(bf) This (i) Upon each Revolving Commitment Increase pursuant to this Section, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal such Revolving Lender’s Applicable Percentage thereof. Any Revolving Loans outstanding immediately prior to the date of such Revolving Commitment Increase that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Loans immediately prior to the date of such Revolving Commitment Increase, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time it will be repaid or refinanced with new Revolving Loans made pursuant to Section 2.12 2.01 in accordance with the Applicable Percentages of the Revolving Lenders after giving effect to the Revolving Commitment Increase; provided, however, that upon the occurrence of any Event of Default, each Revolving Commitment Increase Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other Revolving Lenders so that, after giving effect thereto, all Revolving Loans that are Eurocurrency Loans are held by the Revolving Lenders in accordance with their then-current Applicable Percentages. Any such assignments shall supersede any be effected in accordance with the provisions of Section 9.04; provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 2.11 9.04(b) shall not apply thereto. If there are any ABR Revolving Loans outstanding on the date of such Revolving Commitment Increase, such Loans shall either be prepaid by the Borrower on such date or 10.01 refinanced on such date (subject to satisfaction of applicable borrowing conditions) with Revolving Loans made on such date by the Revolving Lenders (including the Revolving Commitment Increase Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each Revolving Commitment Increase Lender will make ABR Revolving Loans to the contraryBorrower by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Revolving Commitment Increase Lender’s Revolving Commitment Increase by the aggregate amount of the Revolving Commitments (after giving effect to the Revolving Commitment Increase on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR Revolving Loans held by the Revolving Lenders other than the Revolving Commitment Increase Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Revolving Commitment Increase Lenders, in such amounts so that, after giving effect thereto, all ABR Revolving Loans will be held by the Revolving Lenders in accordance with their then-current Applicable Percentages. On the date of such Revolving Commitment Increase, the Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the principal amounts of their Revolving Loans being prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Borrowings. (a) The Borrower Borrowers may at any time or from time to time after the Closing Date, by notice from the Parent to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches incremental Revolver Commitments (each an “Incremental Commitment” and all of Loans (them, collectively, the “Incremental Commitments” and any such loans thereunder, the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans Commitments shall be in an aggregate principal amount that is not less than $25,000,000 (10,000,000; provided that such amount may be less than $25,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence); provided, further that the allocation of any portion of such increase to the Australian Revolver Commitments shall be determined by the Agent in consultation with the Borrowers, with the approval of each Lender and Additional Lender (if any) agreeing to such increase; provided, further that no allocation of any Incremental Commitment to the Australian Revolver Commitments shall be permitted to the extent the Australian Revolver Commitments would exceed the U.S. Revolver Commitments after giving effect to such Incremental Commitment. Any such increase in Revolver Commitments may increase the U.S. Letter of Credit Sublimit or the Australian Letter of Credit Sublimit subject to the consent of the Agent and the applicable Issuing Bank; provided that any such increase in the U.S. Letter of Credit Sublimit or the Australian Letter of Credit Sublimit shall be provided by an Issuing Bank reasonably acceptable to the Agent and the Parent and the Issuing Bank at the time shall have no obligation to provide such increase. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Loans Commitments shall not exceed $100,000,000. The Incremental Loans (Ai) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount ifshall, in the case of this clause (B) onlyan Incremental Loan to the U.S. Borrowers, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the LoansU.S. Loans and, in the case of an Incremental Loan to Australian Borrowers, rank pari passu in right of payment and of security with the Australian Loans and (bii) shall not mature earlier than be implemented by way of increase of the Original Loan Maturity Date and (c) the Weighted Average Life Revolver Commitments and, except as to Maturity of any Incremental Loans arrangement, underwriting or similar fees, shall be no shorter than on terms identical, including the Applicable Margin and any other pricing matter related to the Revolver Commitments; provided that of the thenOID or up-existing Loans, front fees (dif any) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower Borrowers and the lenders Lenders and/or Additional Lenders providing such Incremental Commitments and Incremental Loans, provided that in the event that the All-In Yield applicable . As a condition precedent to such Incremental Loans exceeds an increase, (i) no Default or Event of Default shall exist on the All-In Yield date of the effectiveness of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis pointsAmendment, (fii) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below below; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (iii) all fees and expenses owing in respect of any such Incremental Amendment to the Agent and the Lenders and/or Additional Lenders providing the Incremental Commitments thereunder shall have been paid and (giv) except as otherwise required or permitted in clauses the Borrowers shall have delivered all customary agreements, certificates, opinions and other customary documents reasonably requested by the Agent.
(ab) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower Parent pursuant to this Section 2.16 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments and Incremental Loans. Incremental Commitments and Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Commitment or Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms that is an Eligible Transferee reasonably acceptable to the Administrative AgentAgent and each Issuing Bank (each such consent not to be unreasonably withheld, delayed or conditioned). Incremental Commitments in respect of Incremental Loans shall become Revolver Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the BorrowerBorrowers, each Lender agreeing to provide such Incremental Commitment, if any, each Additional Lender, if any, and the Administrative AgentAgent and, if applicable, the Issuing Bank. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerParent, to effect the provisions of this Section 2.122.16. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree3.2. The Borrower Borrowers shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Appears in 1 contract
Samples: Syndicated Facility Agreement (Cliffs Natural Resources Inc.)
Incremental Borrowings. (a) The Borrower Borrowers may at any time or from time to time after the Closing Date, by notice from the Parent to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches incremental Revolver Commitments (each an “Incremental Commitment” and all of Loans (them, collectively, the “Incremental Commitments” and any such loans thereunder, the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans Commitments shall be in an aggregate principal amount that is not less than $25,000,000 (10,000,000; provided that such amount may be less than $25,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence); provided, further that the allocation of any portion of such increase to the Australian Revolver Commitments shall be determined by the Agent in consultation with the Borrowers, with the approval of each Lender and Additional Lender (if any) agreeing to such increase; provided, further that no allocation of any Incremental Commitment to the Australian Revolver Commitments shall be permitted to the extent the Australian Revolver Commitments would exceed the U.S. Revolver Commitments after giving effect to such Incremental Commitment. Any such increase in Revolver Commitments may increase the U.S. Letter of Credit Sublimit or the Australian Letter of Credit Sublimit subject to the consent of the Agent and the applicable Issuing Bank; provided that any such increase in the U.S. Letter of Credit Sublimit or the Australian Letter of Credit Sublimit shall be provided by an Issuing Bank reasonably acceptable to the Agent and the Parent and the Issuing Bank at the time shall have no obligation to provide such increase. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Loans Commitments shall not exceed $200,000,000. The Incremental Loans (Ai) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount ifshall, in the case of this clause (B) onlyan Incremental Loan to the U.S. Borrowers, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the LoansU.S. Loans and, in the case of an Incremental Loan to Australian Borrowers, rank pari passu in right of payment and of security with the Australian Loans and (bii) shall not mature earlier than be implemented by way of increase of the Original Loan Maturity Date and (c) the Weighted Average Life Revolver Commitments and, except as to Maturity of any Incremental Loans arrangement, underwriting or similar fees, shall be no shorter than on terms identical, including the Applicable Margin and any other pricing matter related to the Revolver Commitments; provided that of the thenOID or up-existing Loans, front fees (dif any) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower Borrowers and the lenders Lenders and/or Additional Lenders providing such Incremental Commitments and Incremental Loans, provided that in the event that the All-In Yield applicable . As a condition precedent to such Incremental Loans exceeds an increase, (i) no Default or Event of Default shall exist on the All-In Yield date of the effectiveness of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis pointsAmendment, (fii) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below below; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (iii) all fees and expenses owing in respect of any such Incremental Amendment to the Agent and the Lenders and/or Additional Lenders providing the Incremental Commitments thereunder shall have been paid and (giv) except as otherwise required or permitted in clauses the Borrowers shall have delivered all customary agreements, certificates, opinions and other customary documents reasonably requested by the Agent.
(ab) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower Parent pursuant to this Section 2.16 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments and Incremental Loans. Incremental Commitments and Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Commitment or Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms that is an Eligible Transferee reasonably acceptable to the Administrative AgentAgent and each Issuing Bank (each such consent not to be unreasonably withheld, delayed or conditioned). Incremental Commitments in respect of Incremental Loans shall become Revolver Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the BorrowerBorrowers, each Lender agreeing to provide such Incremental Commitment, if any, each Additional Lender, if any, and the Administrative AgentAgent and, if applicable, the Issuing Bank. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerParent, to effect the provisions of this Section 2.122.16. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree3.3. The Borrower Borrowers shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Appears in 1 contract
Samples: Syndicated Facility Agreement (Cleveland-Cliffs Inc.)
Incremental Borrowings. (a) The After the Eleventh Amendment Effective Date, the Borrower may at any time or from time to time after the Closing Datetime, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request (x) one or more additional tranches incremental senior secured term facilities on the terms set forth below (the “Incremental Term Facilities” and the term loans made thereunder, the “Incremental Term Loans”) and/or (y) one or more incremental senior secured revolving facilities on the terms set forth below (the “Incremental Revolving Facilities” and the revolving loans and other extensions of Loans (credit made thereunder, the “Incremental Revolving Loans;” the Incremental Revolving Facilities, together with the Incremental Term Facilities, the “Incremental Facilities;” the Incremental Revolving Loans, together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans Facility shall be in an aggregate principal amount that is not less than $25,000,000 (provided provided, 97 that such amount may be less than $25,000,000 if such amount represents all remaining availability under the applicable limit set forth in the next sentence). Notwithstanding anything to the contrary herein, (i) the aggregate principal amount of all Incremental Term Facilities and all Incremental Equivalent Debt shall not exceed $1,000,000,000 and (ii) the aggregate amount of the all Incremental Loans Revolving Facilities shall not exceed (A) $200,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to 200,000,000; provided that any Incremental Revolving Facility shall be effectuated as an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) increase of the Available Revolving Facility.
(b) The only conditions to the effectiveness of each series of Incremental Amount regardless Amendment (but not the conditions to the Revolving Lenders and Swing Line Lender making any Revolving Loan or any Swing Line Loan or the Facing Agent issuing any Letter of whether there is capacity under clause Credit) shall be as follows:
(Ai) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))). The Incremental Loans (a) Facility shall rank pari passu in right of payment and of security with the Loans, (bii) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility, no Unmatured Event of Default or Event of Default shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life exist; provided, that with respect to Maturity of any Incremental Loans Facility incurred to finance an Investment permitted to be incurred hereunder, such Incremental Facility may be incurred irrespective of whether an Unmatured Event of Default or Event of Default shall be no shorter than that of the then-existing Loansexist, (diii) subject to clauses (b) and (c) abovethe proviso below, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before immediately prior to, and after giving effect to, the effectiveness incurrence of such Incremental Facility; provided, that with respect to any Incremental Amendment referred Facility incurred to below finance an Investment permitted to be incurred hereunder, such Incremental Facility may be incurred irrespective of whether the representations and warranties required to be made under this clause (iii) are correct (other than with respect to (x) the Specified Representations (with an appropriate modification to the representation and warranty in Section 6.5 such that Solvency is measured as of the consummation of the relevant Incremental Facility) and (gy) if there is an acquisition agreement relating to such Investment, the Target Representations, which representations and warranties in immediately preceding clauses (x) and (y) shall be true and correct in all material respects upon such effectiveness), (iv) the relevant Incremental Facility shall not mature earlier than the maturity date of the Relevant AIY Reference Tranche, (v) the Weighted Average Life to Maturity of the relevant Incremental Facility shall be no shorter than that of the Relevant AIY Reference Tranche, (vi) subject to clauses (iv) and (v) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder, (vii) the Applicable Eurocurrency Margin and the Applicable Base Rate Margin applicable to each Incremental Term Facility will be determined by the Borrower and the lenders providing such Incremental Term Facility; provided that in the event that the All-In Yield applicable to any Incremental Term Facility exceeds the All-In Yield of the Relevant AIY Reference Tranche by more than 50 basis points, then (1) the Applicable Eurocurrency Margin and Applicable Base Rate Margin for the Relevant AIY Reference Tranche shall be automatically increased to the extent necessary so that the All-In Yield of the Relevant AIY Reference Tranche is equal to the All-In Yield of such Incremental Term Facility minus 50 basis points (such increase in the Applicable Eurocurrency Margin and Applicable Base Rate Margin, the “MFN Margin Increase”) and (2) the Applicable Eurocurrency Margin and Applicable Base Rate Margin for each other Term Loan (other than the Relevant AIY Reference Tranche) shall be automatically increased by the MFN Margin Increase; provided, further, that, in the event the Eleventh Amendment Release Date occurs, to the extent the All-In Yield of such Incremental Term Loans is higher than the All-In Yield of the 2014-1 Additional Term Loans due to a Eurocurrency Rate or Base Rate “floor” on such Incremental Term Loan being higher than the “floor” for the Eurocurrency Rate or Base Rate as applied to the 2014-1 Additional Term Loans, such portion of the MFN Margin Increase as applied to the 2014-1 Additional Term Loans so attributable to such higher “floor” shall be effected solely through an increase in any Eurocurrency Rate or Base Rate “floor” applicable to such 2014-1 Additional Term Loans (without reducing the MFN Margin Increase applicable to the other Term Loans), (viii) any Incremental Revolving Facility shall be on identical terms and pursuant to documentation applicable to the Revolving Loan, and (ix) except as otherwise required or permitted in clauses (aii) through (fviii) above, all other terms of such Incremental LoansTerm Facility, if not consistent with the terms of the existing Term Loans, shall be reasonably satisfactory to the Administrative AgentAgent (as evidenced by its execution of the applicable Incremental Amendment). Any Incremental Loans Term Facility may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))basis) as the Term Loans in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. .
(c) Each notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount and proposed terms of the relevant Incremental LoansFacility. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a all or any portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 2.13 and otherwise on terms reasonably acceptable to the Administrative Agent). ; provided that, with respect to any Incremental Revolving Facility, the Administrative Agent, each Facing Agent and the Swing Line Lender shall have consented (in each case, such consent not to be unreasonably withheld, conditioned or delayed) to any Additional Lender or any existing Lender that is not a Revolving Lender as of the Tenth Amendment Effective Date providing all or a portion of such Incremental Revolving Facility if such consent by the Administrative Agent, the applicable Facing Agent and the Swing Line Lender, as the case may be, would be required hereunder, for an assignment of Revolving Loans or Revolving Commitments.
(d) Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. In connection with such Incremental Amendment, the Administrative Agent shall be entitled to request such legal opinions, board resolutions, officers’ certificates, mortgage amendments and other documentation and instruments with respect to the real property collateral, and/or reaffirmation agreements substantially consistent with those delivered on the Ninth Amendment Effective Date (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree2.13. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(be) This Section 2.12 Upon each increase in the Revolving Commitments pursuant to an Incremental Revolving Facility, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each lender providing a portion of the Incremental Revolving Facility (each an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Revolving Lender and (ii) the Incremental Revolving Facility Lenders shall supersede any provisions make such Revolving Loans, and the other Revolving Lenders shall receive such prepayments, as the Administrative Agent shall direct, to cause the Revolving Loans to be made ratably by all the Revolving Lenders immediately after giving effect to such Incremental Revolving Facility. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in Section 2.11 or 10.01 this Agreement shall not apply to the contrarytransactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Samples: Credit Agreement
Incremental Borrowings. (a) The Borrower may at At any time or from time to time after the Closing Effective Date and prior to the date that is twelve months prior to the Revolving Credit Termination Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the “Incremental Loans”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, so long as no Default or Event of Default has occurred and is continuing, the Borrower may, (x) by delivery of a Revolving Commitment Increase Notice to the Administrative Agent, which notice shall exist promptly be copied by the Administrative Agent to each Lender, request an increase in the Total Revolving Credit Commitments pursuant to a Revolving Commitment Increase Notice or (y) by delivery of an Incremental Term Loan Facility Notice to the Administrative Agent, which notice shall promptly be copied by the Administrative Agent to each Lender, add one or more tranches of term loans under the Loan Documents pursuant to an Incremental Term Loan Facility Notice (the “Incremental Term Loan Facilities” and the term loans made thereunder, the “Incremental Term Loans”; each such increase or tranche pursuant to clauses (x) and (ii) at the time when any such Incremental Loan is made (and after giving effect theretoy), no Default or Event of Default shall existan “Incremental Facility”). Each tranche of The Borrower may request Incremental Loans shall be Facilities in an aggregate principal amount that is up to $200,000,000235,000,000; provided that, (i) each such Revolving Offered Increase Amount shall be in a minimum amount of not less than $25,000,000 25,000,000, (provided that ii) each such Incremental Term Loan Facility shall be in a minimum amount may be of not less than $25,000,000 if such amount represents all remaining availability under 75,000,0005,000,000 and (iii) at no time shall the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, Total Revolving Credit Commitments (as so increased) together with the aggregate principal amount of the Incremental Loans Term Loan Facilities exceed $450,000,000.
(i) For any increase of the Total Revolving Credit Commitments, the Borrower shall not exceed (A) $200,000,000 in first, offer each of the aggregate Revolving Credit Lenders the opportunity to provide a pro rata portion of any Revolving Offered Increase Amount pursuant to this Section 2.23(b)(iii) below, (B) second, offer each of the Revolving Credit Lenders the opportunity to provide all or a portion of any Revolving Offered Increase Amount not otherwise accepted by the other Revolving Credit Lenders (pursuant to clause (A) above) pursuant to Section 2.23(b)(ii) below
(ii) Any additional bank, financial institution or (Bother entity that the Borrower selects to offer participation in any increased Total Revolving Credit Commitments and that elects to become a party to this Agreement and provide a Revolving Credit Commitment in an amount so offered and accepted by it pursuant to Section 2.23(b)(i) at shall execute a New Lender Supplement, substantially in the form of Exhibit I, with the Borrower’s option, up each Issuing Lender, each Swing Line Lender and the Administrative Agent, whereupon such bank, financial institution or other entity (herein called a “New Revolving Credit Lender”) shall become a Revolving Credit Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement,; provided that, the Revolving Credit Commitment of any such New Revolving Credit Lender shall be in an unlimited amount ifnot less than $5,000,000.
(iii) Any Revolving Credit Lender that accepts an offer to it by the Borrower to increase its Revolving Credit Commitment pursuant to Section 2.23(b)(i) shall, in each case, execute a Commitment Increase Supplement substantially in the case form of Exhibit J (each, a “Commitment Increase Supplement”), with the Borrower, each Issuing Lender, each Swing Line Lender and the Administrative Agent, whereupon such Revolving Credit Lender shall be bound by and entitled to the benefits of this clause Agreement with respect to the full amount of its Revolving Credit Commitment as so increased.
(Biv) onlyOn any Revolving Credit Increase Effective Date, the Total Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) each bank, financial institution or (B)other entity that is a New Revolving Credit Lender pursuant Section 2.23(b)(ii) or any Revolving Credit Lender that has increased its Revolving Credit Commitment pursuant to Section 2.23(b)(iii) shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the “Available Incremental Amount”) (it being understood that Incremental Loans may be incurred under clause (B) benefit of the Available Incremental Amount regardless other relevant Revolving Credit Lenders, as being required in order to cause, after giving effect to such increase and the use of whether there is capacity under clause (A) thereofsuch amounts to make payments to such other relevant Revolving Credit Lenders, and if both clauses (A) each Revolving Credit Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Percentage of such Revolving Credit Loans and (B) are available and the Borrower does not make an election, the Borrower will shall be deemed to have elected clause (B))). The Incremental repaid and reborrowed all outstanding Revolving Credit Loans (a) shall rank pari passu in right of payment and of security with all the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) the Weighted Average Life Revolving Credit Lenders to Maturity of any Incremental Loans shall be no shorter than that of the then-existing Loans, (d) subject to clauses (b) and (c) above, the amortization schedule applicable to any Incremental Loans shall be determined by the Borrower and the lenders thereunder, (e) the interest rate margin applicable to any Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Loans, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield equal its Revolving Credit Percentage of such outstanding Revolving Credit Loans is equal to the All-In Yield as of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if not consistent with the terms of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Loans may be made by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms reasonably acceptable to the Administrative Agent). Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of any increase in the Revolving Credit Commitments (with such Borrowing” or similar language in such Section 4.02 shall be deemed reborrowing to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds consist of the Incremental Loans for any purpose not prohibited by this Agreement.
(b) This Section 2.12 shall supersede any provisions in Section 2.11 or 10.01 to the contrary.Types of
Appears in 1 contract
Samples: Amended and Restated Credit Agreement (Chatham Lodging Trust)
Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans term loans (the “Incremental Loans”); ) be made available to an Incremental Borrower, provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when that any such Incremental Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 5,000,000 (provided that such amount may be less than $25,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Loans (together with the aggregate amount of any Incremental First Lien Term Loans) shall not exceed (A) the sum of $200,000,000 in 75,000,000 and the aggregate pursuant amount of all voluntary prepayments of Loans hereunder and of First Lien Term Loans under the First Lien Credit Agreement (such sum, the “Incremental Availability”); provided, that any Incremental Borrower may incur additional Incremental Loans hereunder (the “Additional Incremental Loans”), so long as, on a Pro Forma Basis after giving effect to this clause the incurrence of such Additional Incremental Loan, either (Ai) the Senior Secured Incurrence Test would be satisfied or (Bii) at the Borrower’s option, up to an unlimited amount if, in the case of this clause (B) only, the Total Senior Secured Leverage Ratio for would be no greater than the Test Period Senior Secured Leverage Ratio in effect immediately preceding the prior to such incurrence of such Indebtedness for which financial statements are available is less than or equal to 3.75 to 1.00 (calculated on a Pro Forma Basis) (the applicable amount under clause (A) or (B), the “Available Incremental Amount”) (it being understood that that, subject to the satisfaction of such test, Additional Incremental Loans may be incurred under clause (B) of effected by the Available Borrower and/or Incremental Amount regardless of Borrower whether or not there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B))any unused Incremental Availability). The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, (b) shall not mature earlier than the Original Loan Maturity Date and (c) shall be treated substantially the Weighted Average Life same as the Loans (in each case, including with respect to Maturity of any mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Loans shall and Additional Incremental Loans may be no shorter than that materially different from those of the then-existing LoansLoans to the extent such differences are reasonably acceptable to the Administrative Agent, (dii) subject to clauses (b) and (c) above, the amortization schedule interest rates applicable to any the Incremental Loans and Additional Incremental Loans shall be determined by the Borrower and the lenders thereunder, thereof and (eiii) the interest rate margin applicable to Incremental Loans and Additional Incremental Loans may be made available in any Incremental Currency; provided, further, that, as of the date of the incurrence of the Incremental Loans will be determined by the Borrower and the lenders providing such or Additional Incremental Loans, provided that in as the event that case may be, the All-In Yield applicable Weighted Average Life to such Maturity of the Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Additional Incremental Loans, if as applicable, shall not consistent with the terms be shorter than that of the existing Loans, shall be reasonably satisfactory to the Administrative Agent. Any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower and/or Other Incremental Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans or Additional Incremental Loans, as applicable. Incremental Loans and Additional Incremental Loans may be made by any existing Lender (it being understood that no and each existing Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Loan) Loan or by any Additional Lender Incremental Loan on terms permitted in this Section 2.12 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”). Commitments in respect of Incremental Loans and Additional Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, the Incremental Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12(including, without limitation, such amendments to take into account the accession of an Incremental Borrower to this Agreement and an Incremental Currency other than Dollars) including, without limitation, the amendments described in Section 2.15(b). If any Incremental Loans or Additional Incremental Loans are incurred by an Other Incremental Borrower other than the Borrower, the Borrower shall guaranty such Loans pursuant to a guaranty consistent with the form of Guaranty provided on the Closing Date. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Loan, the Borrowing borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 Sections 4.01(h) and (i) (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 Sections 4.01(h) and (i) shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall and/or Incremental Borrower will use the proceeds of the Incremental Loans and Additional Incremental Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Loans or Additional Incremental Loans unless it so agrees.
(b) If an Incremental Borrower is a direct or indirect holding company of the Borrower, the Incremental Amendment shall provide, among other things, that:
(i) all incurrence tests and other provisions calculated prior to such Incremental Amendment by reference to the financial performance or circumstance of the Borrower and its Restricted Subsidiaries (including without limitation Capital Expenditure, Capitalized Software Expenditures, Consolidated EBITDA, Consolidated Lease Expense, Consolidated Senior Secured Debt, Consolidated Total Debt, Consolidated Working Capital, Cumulative Excess Cash Flow and Excess Cash Flow) shall be, immediately following such Incremental Amendment, calculated by reference to the financial performance or circumstance of such Incremental Borrower and its Restricted Subsidiaries provided that it is understood and agreed that (A) the applicable maximum or minimum financial ratios or amounts shall not be amended and (B) such incurrence tests and other calculations shall be determined without giving effect to the Holdings Loans or any other Indebtedness of Holdings not guaranteed by any other Loan Party;
(ii) solely in connection with consummation of an acquisition previously identified to the Administrative Agent and the financing thereof, (A) for purposes of Sections 2.15(a)(ii), 7.02(j)(ii), 7.03(u)(ii) and 7.03(v)(ii), the incurrence tests set forth therein shall be calculated as if the Holding Loans were Loans of the Borrower at such time, (B) the ratio set forth in the definition of Senior Secured Incurrence Test shall be deemed to be 7.25:1.00 and (C) the ratio set forth in Section 7.03(u)(ii) shall be deemed to be 7.25:1.00;
(iii) save as provided in this Section 2.15(b) or as the context otherwise requires (A) references to the Borrower in this Agreement immediately prior to such Incremental Amendment shall include, from and after the effectiveness of such Incremental Amendment, such Incremental Borrower, and (B) if such Incremental Borrower is a holding company of Holdings, references to Holdings in this Agreement immediately prior to such Incremental Amendment shall mean, from and after the effectiveness of such Incremental Amendment, such Incremental Borrower or the holding company of such Incremental Borrower;
(iv) Holdings, the Borrower, such Incremental Borrower (and any other Intermediate Holding Company) and the other Loan Parties shall enter into such Loan Documents and take such action to ensure, among other things, that the requirements set forth in the definition of “Collateral and Guarantee Requirement” are and continue to be satisfied immediately following such Incremental Amendment, including without limitation (A) guaranteeing the Obligations and (B) securing the Obligations and Guarantees by a second-priority security interest in the Equity Interests of the Borrower, such Incremental Borrower (and establishing a holding company of such Incremental Borrower if required for this purpose) and each Intermediate Holding Company;
(v) except as set forth in clause (b)(i) above, all representations and warranties, covenants and Events of Default contained in this Agreement applicable to the Borrower (immediately prior to such Incremental Amendment) and its Subsidiaries or Restricted Subsidiaries on a consolidated basis shall be modified to apply to such Incremental Borrower and its Subsidiaries and Restricted Subsidiaries, as the case may be, on a consolidated basis unless otherwise mutually determined by the Administrative Agent and the Borrower; and
(vi) references in this Agreement and the other Loan Documents to Holdings, the Borrower and an Intermediate Holding Company shall be modified to be references to such Incremental Borrower to the extent appropriate as mutually determined by the Administrative Agent and the Borrower.
(c) This Section 2.12 2.15 shall supersede any provisions in Section 2.11 2.14 or 10.01 to the contrary.
Appears in 1 contract
Samples: Second Lien Credit Agreement (SMART Technologies Inc.)
Incremental Borrowings. (a) The Borrower may at any time or from time to time after the Closing Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans term loans or increases to an existing tranche of term loans (the “Incremental Term Loans”); provided that (iw) upon at the effectiveness of time that any such Incremental Amendment referred to belowTerm Loan is made, no Default or Event of Default shall exist have occurred and be continuing, except that in the case of Incremental Term Loans incurred to make a Permitted Acquisition or a Permitted Investment, in which case at the time such Incremental Term Loan is made, no Event of Default pursuant to Sections 9.01(a) or (iif) shall have occurred and be continuing, (x) at the time when that any such Incremental Term Loan is made, the representations and warranties of the Borrower and each other Loan Party contained in Article VI or any other Loan Document shall be true and correct in all material respects on and as of such dates, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that to the extent that any representation and warranty is qualified as to “materiality” or “Material Adverse Effect”, such representation and warranty shall be true and correct in all respects on such respective dates, and except that for purposes of this section, the representations and warranties contained in clause (a) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01; provided, further, that, in the case of Incremental Term Loans incurred to make a Permitted Acquisition or a Permitted Investment, such representations and warranties to be made at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything limited to the contrary hereinSpecified Representations and the “acquisition agreement representations” (or similar representations) conformed as appropriate for such transaction; and (y) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer, in detail reasonably satisfactory to the Administrative Agent, demonstrating that the incurrence of such Incremental Term Loans requested does not violate the provisions of the Relative Rights Agreement or the Master Lease. The aggregate amount of the Incremental Term Loans shall not exceed the greater of (Ax)(A) $200,000,000 in the aggregate pursuant to this clause (A) or 500,000,000 and (B) at the Borrower’s option, up to 100% of Consolidated EBITDA plus (y) an unlimited amount ifamount, so long as in the case of this clause (By) only, the Total Borrower has at the time such Incremental Term Loan is made, a Senior Secured Net Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements are available is equal to or less than or equal to 3.75 to 1.00 (3.75:1.00 calculated on a Pro Forma Basis; provided that for purposes of this clause (y), net cash proceeds of Incremental Term Loans incurred at such time shall not be netted against the applicable amount of Consolidated Indebtedness for purposes of such calculation of the Senior Secured Net Leverage Ratio plus (z) the aggregate amount of voluntary prepayments of Term Loans other than from the proceeds of the incurrence of Indebtedness (provided, however, that if amounts incurred under clause (y) are incurred concurrently with the incurrence of Incremental Term Loans under clause (x) and/or (z), the Senior Secured Net Leverage Ratio shall be calculated without giving effect to such amounts incurred in reliance on the foregoing clause (x) and/or (z); provided, further, for the avoidance of doubt, to the extent the proceeds of any Incremental Term Loans are being utilized to repay Indebtedness, such calculations shall give pro forma effect to such repayments) (the applicable amount available under clause clauses (Ax), (y) or and (Bz), the “Available Incremental Amount”) (it being understood that Incremental Loans ). The Borrower may be incurred under elect to use clause (By) of the Available Incremental Amount regardless of whether there is the Borrower has capacity under clauses (x) or (z) of the Available Incremental Amount. Further, the Borrower may elect to use clause (Ay) thereofof the Available Incremental Amount prior to using clause (x) or (z) of the Available Incremental Amount, and if both clauses clause (Ay) and clause (Bx) and/or (z) of the Available Incremental Amount are available and the Borrower does not make an election, then the Borrower will be deemed to have elected to use clause (B))). The y) of the Available Incremental Loans (a) shall rank pari passu in right of payment and of security with the Loans, Amount.
(b) The Incremental Term Loans shall (i) be on terms and pursuant to documentation to be determined by the Borrower and the Lenders thereunder; provided that, to the extent such terms and documentation (except to the extent permitted by clauses (ii) and (iii) below) are not consistent with this Agreement, they shall be reasonably satisfactory to the Borrower and the Administrative Agent, (ii) (A) not mature earlier than the Original Loan Maturity Date for any outstanding Term Loans and (cB) have a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of any outstanding Term Loans; provided that this clause (ii) shall not apply to up to $150,000,000 of Indebtedness, in the aggregate, in respect of all Incremental Term Loans shall be no shorter than that of the then-existing Loans, (d) subject and any Indebtedness incurred pursuant to clauses (bSection 8.03(u) and (cv) (this clause (ii), the “Maturity and Weighted Average Life to Maturity Limitations”), (iii) only be guaranteed by the Guarantors, (iv) have interest rates and an amortization schedule (subject to clause (ii) above, the amortization schedule ) applicable to any the Incremental Term Loans shall be determined by the Borrower and the lenders Lenders thereunder; provided that, (e) if the interest rate margin applicable Applicable Rate related to any Incremental Term Loans will incurred within twelve (12) months of the Effective Date exceeds the Applicable Rate relating to any outstanding Term Loans immediately prior to the effectiveness of the applicable Incremental Amendment by more than 0.50% per annum, the Applicable Rate relating to such Term Loans shall be determined adjusted to be equal to the Applicable Rate relating to such Incremental Term Loans minus 0.50% per annum; provided, further, that the immediately preceding proviso shall not apply if (x) such Incremental Term Loans mature more than 12 months after the Maturity Date or (y) the aggregate principal amount of such Incremental Term Loans (together with the aggregate principal amount of all other Incremental Term Loans excluded in reliance on this clause (y) and term loan Indebtedness secured on a pari passu basis with the Liens securing the Term Loans pursuant to Section 8.03(u) and (v)) does not exceed $150,000,000 in the aggregate (the provisions under this proviso and the immediately preceding proviso collectively, the “MFN Provisions”); provided, further, that in determining the Applicable Rate for Incremental Term Loans or Term Loans solely for purposes of the two immediately preceding provisos, (w) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) paid by the Borrower to all Lenders (and not any one Lender) providing Term Loans or Incremental Term Loans in the initial primary syndication thereof shall be included and equated to interest (with OID being equated to interest based on an assumed four-year life to maturity), (x) customary arrangement or commitment fees payable to the Joint Book Runners in connection with the Term Loans or to one or more arrangers (or their Affiliates) of the Incremental Term Loans shall be excluded, (y) if the lowest permissible Base Rate is greater than 1.50% per annum and the lowest permissible Eurodollar RateTerm SOFR is greater than 0.50% per annum, in each case the difference between the “floor” and 0.50%, in the case of Eurodollar RateTerm SOFR Loans, and such floor and 1.50% per annum, in the case of Base Rate Loans, shall be equated to Applicable Rate for purposes of the two immediately preceding provisos and (v) the Incremental Term Loans may be secured only by Collateral and may only be secured by either a pari passu or a junior Lien on the Collateral, in each case on terms and pursuant to documentation (including an Acceptable Intercreditor Agreement if applicable) reasonably satisfactory to the Borrower and the lenders providing such Incremental Term Loans; provided that, provided that in the event that the All-In Yield applicable to such Incremental Loans exceeds the All-In Yield of any Class of Loans existing at such time by more than 50 basis points, then the interest rate margins for each such Class of Loans shall be increased to the extent necessary so that the All-In Yield of such Loans is equal to the All-In Yield of such Incremental Loans minus 50 basis points, (f) the representations terms and warranties contained in the Loan Documents shall be accurate in all material respects before and after the effectiveness of any Incremental Amendment referred to below and (g) except as otherwise required or permitted in clauses (a) through (f) above, all other terms of such Incremental Loans, if documentation are not consistent with this Agreement (except as they relate to maturity, Weighted Average Life to Maturity or interest rates), they shall not be more favorable, taken as a whole (as reasonably determined by the Borrower), to the lenders providing such Incremental Term Loans than the terms of the existing Term Loans (other than with respect to terms and conditions applicable after the maturity of the Term Loans) unless such more favorable terms are added for the benefit of the Term Loans, which shall be reasonably satisfactory to not require the Administrative Agent. Any consent of the Lenders and any such Incremental Term Loans may participate on a pro rata basis or on a less than pro rata basis contain any financial maintenance covenants, so long as such covenants are also added for the benefit of the Lenders, which shall not require consent of the Lenders.
(but not on a greater than pro rata basis(except for prepayments pursuant to Section 2.03(b)(iii)(B))c) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment. Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any an existing Lender (it being understood that and no existing Term Loan Lender will shall have an any obligation to make a portion of any an Incremental Term Loan) or by any Additional Lender on terms permitted in this Section 2.12 and otherwise on terms other bank or other financial institution reasonably acceptable to the Administrative AgentAgent and the Borrower (any such other bank or other financial institution being called an “Additional Lender”). .
(d) Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by HoldingsParent, the Borrower, each Guarantor, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.12. The effectiveness of 2.14 (andincluding, in the case of any Incremental Amendment for an Incremental Loanwithout limitation, the Borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an preserve “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowingfungibility” or similar language to add premiums in respect of existing Term Loans in connection with an increase to such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Incremental Loans for any purpose not prohibited by this AgreementTerm Loans).
(be) This Section 2.12 2.14 shall supersede any provisions in Section 2.11 or 10.01 Sections 2.13 and 11.01 to the contrary.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Ardent Health Partners, LLC)
