Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion. (b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice. (c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment.
Appears in 4 contracts
Samples: 364 Day Revolving Credit Agreement (General Motors Financial Company, Inc.), 364 Day Revolving Credit Agreement (General Motors Financial Company, Inc.), 364 Day Revolving Credit Agreement (General Motors Financial Company, Inc.)
Incremental Commitments. (a) The Company may Borrower Representative may, at any time or from time to time notify after the Closing Date, by notice to the Administrative Agent that certain (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders designated by Lenders), request one or more increases in the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with amount of the Commitments for the purpose of increasing the existing Commitments under the Facility (each such increase, a “Commitment Increase” and any Lender making such a commitment, an “Incremental Lender”) by executing and delivering ), which may be allocated to the Maximum U.S. Credit Amount and/or the Maximum Canadian Credit Amount at the discretion of the Borrower Representative upon notice to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying Agent; provided that:
(i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to any such Commitment Increase, the aggregate amount of Commitment Increases shall not exceed an amount equal to $100,000,000;
(ii) extensions of credit or other obligations of the Loan Parties under any Commitment Increase shall rank pari passu in right of payment and of security with the other extensions of credit and obligations of the Loan Parties hereunder;
(iii) Commitments under any Commitment Increase shall not terminate, and amounts advanced under any Commitment Increase shall not mature, earlier than the Revolving Termination Date;
(iv) all Commitments under any Commitment Increase (including and extensions of credit thereunder) shall be subject to the incurrence terms and conditions (other than fees) applicable to Advances, Loans, Letters of any Incremental Loans on the applicable Commitment Increase Date Credit and use of proceeds thereof) Commitments hereunder; and
(xv) no Default or Event of Default shall be continuing and (yor, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitmentsor 8.1(g)) shall not exceed $2 billionexist on the Incremental Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Advances made thereunder).
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on notice from the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) Borrower Representative to the Company and/or Administrative Agent pursuant to Section 2.23(a) shall set forth the requested amount and proposed terms of the relevant Commitment Increase. All fees applicable Subsidiary Borrowers from time to time on or after the a Commitment Increase Date specified shall be determined by the Borrower Representative, the Administrative Agent and the Lenders participating in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation NoticeIncrease.
(c) On Commitment Increases may be provided by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to provide a portion of any Commitment Increase Datewithout such Lender’s prior written consent and nothing in this Section 2.23 shall constitute a commitment by any Lender to provide a portion of any such Commitment Increase), in each case on terms permitted in this Section 2.23; provided that the Administrative Agent and the Issuing Banks shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 10.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that the Issuing Banks shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to any Commitment Increase provided by any Additional Lender. Commitments in respect of Commitment Increases shall become Commitments, U.S. Revolving Commitments and/or Canadian Revolving Commitments, as applicable (or in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment, U.S. Revolving Commitment and/or Canadian Revolving Commitment, as applicable), under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the relevant Borrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the event reasonable opinion of the Administrative Agent and the Borrower Representative, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be (unless waived by the Additional Lender) subject to the satisfaction of each of the conditions set forth in Section 4.2 (it being understood that all references to the date of such extension of credit or similar language in Section 4.2 shall be deemed to refer to the Incremental Closing Date) and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Closing Date”). U.S. Advances, Canadian Advances, U.S. Letters of Credit and Canadian Letters of Credit provided under any Commitment Increase shall constitute “U.S. Advances,” “Canadian Advances,” “U.S. Letters of Credit” and “Canadian Letters of Credit” hereunder and shall be subject to all the terms and conditions set forth herein.
(d) Upon each increase in Revolving Commitments under a Facility pursuant to this Section, each Revolving Lender under such Facility immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans under such that, after giving effect to each such deemed assignment and assumption of participations, the Facility are then outstanding, percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each relevant Incremental such Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Commitment and if, on the date of such increase, there are any Advances outstanding, such Advances shall make available on or prior to the Administrative Agent effectiveness of such amounts Commitment Increase either be prepaid from the proceeds of additional Advances made hereunder or assigned to a Commitment Increase Lender (in immediately available funds as the Administrative Agent shall determine each case, reflecting such increase in Commitments, such that Advances are necessary held ratably in order to causeaccordance with each Revolving Lender’s Pro Rata Share, after giving effect to such increased Commitments increase), which prepayment or assignment shall be accompanied by accrued interest on the Advances being prepaid and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably any costs incurred by all Lenders with Commitments in the Facility any Lender in accordance with such Commitments after giving effect to such increaseSection 2.19. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, (ii) the Company pro rata borrowing and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under pro rata payment requirements contained elsewhere in this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay not apply to the relevant Lenders transactions effected pursuant to the amountsimmediately preceding sentence.
(e) Notwithstanding anything to the contrary herein, if any, payable under this Section 2.22 as a result of such prepayment2.23 shall supersede any provisions in Section 10.1 to the contrary.
Appears in 3 contracts
Samples: Amendment No. 2 (JELD-WEN Holding, Inc.), Amendment No. 1 (JELD-WEN Holding, Inc.), Revolving Credit Agreement (JELD-WEN Holding, Inc.)
Incremental Commitments. (a) The Company Borrower may from time to time notify time, by written notice to the Administrative Credit Facility Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Working Capital Commitment Increase Notice”), request increases in the Working Capital Commitments (together with any applicable corresponding increases in the Issuing Bank Limits) of the relevant Working Capital Lender, Issuing Bank or by any other Person that is an Eligible Assignee or satisfies the rating requirement set forth in the definition of “Issuing Bank”, as applicable (each, a “Working Capital Commitment Increase”) by executing and delivering ), up to an aggregate principal amount not to exceed the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments maximum amount of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect Working Capital Debt permitted pursuant to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereofSection 6.2(a) (xWorking Capital Debt) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billionCommon Terms Agreement.
(b) Each Incremental Lender The Working Capital Commitment Increase Notice shall specify (i) the date on which the Borrower proposes that such Working Capital Commitment Increase shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to the Credit Facility Agent, (ii) the amounts of the Working Capital Commitment Increase (including any proposed increase in Non-Fronting Limit or Fronting Limit of an Issuing Bank) and (iii) the identity of each Working Capital Lender, Issuing Bank or other Person that is a signatory to an Incremental Loan Activation Notice severally agreesEligible Assignee or satisfies the rating requirement set forth in the definition of “Issuing Bank”, on the terms and conditions of this Agreement, to make revolving credit loans as applicable (each, an “Incremental LoanLender/Issuing Bank”) to whom the Company and/or Borrower proposes any portion of the applicable Subsidiary Borrowers from time to time on or after the Working Capital Commitment Increase Date specified in be allocated and the amounts of such Incremental Loan Activation Notice in an aggregate principal amount outstanding at allocations; provided that, any time up Working Capital Lender, Issuing Bank or other Person approached to but not exceeding the amount provide all or a portion of the Incremental Working Capital Commitment of such Incremental Lender specified Increase may elect or decline, in such Incremental Loan Activation Noticeits sole and absolute discretion, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Noticeparticipate.
(c) On any Each Working Capital Commitment Increase Dateshall become Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) (or, in the event any Loans case of an increase in the commitment of an existing Working Capital Lender or Issuing Bank, an increase in such Working Capital Lender’s or Issuing Bank’s applicable Working Capital Commitment, Issuing Bank Limit, Non-Fronting Limit or Fronting Limit (as applicable)) under this Agreement pursuant to an amendment (such amendment, an “Incremental Amendment”) to this Agreement executed by the Borrower, the Credit Facility are then outstanding, Agent and each Incremental Lender/Issuing Bank (with the consent of no other Working Capital Lender being required) which provides solely for (i) the increase in the applicable Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) proposed in the applicable Working Capital Commitment Increase Notice and consented to by the applicable Incremental Lender/Issuing Bank, (ii) amendments required to reflect the relative unfunded Commitments of the Incremental Lenders/Issuing Banks and (iii) the joinder of each relevant Incremental Lender/Issuing Bank that is not already an existing Working Capital Lender or Issuing Bank party to this Agreement. The effectiveness of any Incremental Amendment shall make available be subject solely to the Administrative Agent conditions that (A) no Loan Facility Event of Default or Unmatured Loan Facility Event of Default shall exist on such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, date of effectiveness before or after giving effect to such increased Commitments Working Capital Commitment Increase, (B) each Incremental Lender that is not already a Working Capital Lender shall be entitled to receipt of any required reliance letters in respect of the legal opinions provided to the Credit Facility Agent pursuant to Section 4.1(f) (Conditions to Closing Date and Initial Advance – Opinions from Counsel) of the application Common Terms Agreement, (C) since the time of the financial statements most recently provided pursuant to Section 10.1(a) (Accounting, Financial and Other Information) of the Common Terms Agreement no developments have occurred which, individually or in the aggregate have resulted in or could reasonably be expected to result in a Material Adverse Effect, (D) each Incremental Lender/Issuing Bank who is not already a Working Capital Lender or Issuing Bank is reasonably acceptable to the Credit Facility Agent and each Issuing Bank and (E) the Intercreditor Agent has received, at least three (3) Business Days before the effectiveness of such amounts to prepay Loans under Incremental Amendment, a certificate from the Facility Borrower that (1) identifies each holder of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Working Capital Commitments in the Facility in accordance with such Commitments (after giving effect to such increase, (iithe applicable Working Capital Commitment Increase) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii2) attaches a copy of the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentproposed Incremental Amendment.
Appears in 3 contracts
Samples: Credit Facility Agreement (Venture Global, Inc.), Credit Facility Agreement (Venture Global, Inc.), Credit Facility Agreement (Venture Global, Inc.)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, on one or more occasions, request Incremental Commitments in an additional aggregate principal amount not to exceed the Incremental Commitment Cap from one or more Incremental Lenders (which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion)) willing to provide such Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent that certain of (which approval shall not be unreasonably withheld, delayed or conditioned), the Lenders designated by Swingline Lender (which approval shall not be unreasonably withheld, delayed or conditioned) and the Company and/or that additional lenders Borrower (in its sole discretion) unless such Incremental Lender is an existing Lender, and (ii) each Incremental Commitment shall be added to this Agreement on the same terms as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under (except with respect to any underwriting, upfront or similar fees that may be agreed to among the Facility Borrower and the Incremental Lenders providing such Incremental Commitments) and in all respects shall become a part of the Commitments hereunder on such terms; provided, that, with the consent of the Borrower, the Applicable Rate and Commitment Fee Rate applicable to the then existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (1) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Amount), (2) the aggregate amount of Incremental Commitments, which shall not exceed the Incremental Amount, and (3) the date on which such Incremental Commitments are requested to become effective (the “Commitment IncreaseIncreased Amount Date”). The Borrower shall have no obligation to offer any Lender the opportunity to participate in any Incremental Commitments.
(b) by executing The Borrower and delivering each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such Lenders or such additional lenders deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s written consent (not to be unreasonably withheld) and specifying furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.22 unless (i) on the respective Incremental Commitments date of such Incremental Lenders effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, and (ii) the applicable Commitment Increase Date; providedAdministrative Agent shall have received legal opinions, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date board resolutions and use of proceeds thereof) (x) no Default or Event of Default shall be continuing other closing certificates and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) documentation to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to extent reasonably required by the Administrative Agent Agent, and such amounts in immediately available funds additional documents and filings as the Administrative Agent shall determine are necessary in order may reasonably require to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, assure that the Loans under in respect of Incremental Commitments are secured by the Facility Collateral ratably with all other Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to be held ratably by ensure all Lenders with Commitments Revolving Loans in the Facility respect of Incremental Commitments, when originally made, are included in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all each Borrowing of outstanding Revolving Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as on a result of such prepaymentpro rata basis.
Appears in 3 contracts
Samples: Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.)
Incremental Commitments. (a) The Company may Borrower Agent shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any Agent or the Lenders (except, in either case, as otherwise expressly provided in this Section 2.15), to request at any time and from time to time notify after the Closing Date and prior to the Final Maturity Date that the Lenders provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment and, until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent that certain and the Borrower Agent an Incremental Commitment Agreement as provided in clause (b) of this Section 2.15, no Lender shall be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment (if any) or participate in any Letters of Credit in excess of its RL Percentage (subject to Section 2.14(b)(i)), in each case as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.15, (ii) each Lender (and any other Person who is not a Lender but shall become a Lender upon providing an Incremental Commitment) shall only provide an Incremental Commitment with the consent of the Administrative Agent, (iii) the aggregate amount of each request (and provision therefor) for Incremental Commitments shall be in a minimum aggregate amount for all Lenders designated which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.15 of at least $5,000,000 (or such lesser amount that is acceptable to the Administrative Agent), (iv) the aggregate amount of Incremental Commitments permitted to be provided pursuant to this Section 2.15 at any time shall not exceed the Available Incremental Amount at such time (prior to giving effect to such Incremental Commitments), (v) the Borrower Agent shall not increase the Total Revolving Loan Commitment pursuant to this Section 2.15 more than two times, (vi) the Applicable Margins with respect to Revolving Loans to be incurred pursuant to an Incremental Commitment shall be the same as those applicable to any other Revolving Loans and (vii) all Revolving Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Loan Documents and shall be secured by the Company and/or that additional lenders relevant Security Documents, and guaranteed under the Guarantee Agreement, on a pari passu basis with all other Loans (and related Obligations) secured by each relevant Security Document and guaranteed under the Guarantee Agreement, and each Lender agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Letters of Credit pursuant to Section 3.04 and make Revolving Loans as provided in Section 2.01, and such Revolving Loans shall be added constitute Revolving Loans for all purposes of this Agreement and the other applicable Loan Documents.
(b) At the time of the provision of Incremental Commitments pursuant to this Agreement as Section 2.15, (I) the Borrower Agent, each Guarantor, the Administrative Agent and each Issuing Lender (if the consent of each Issuing Lender is required pursuant to Section 2.15(a)(ii)) and each such Lender which agrees to provide an Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility Commitment (a each an “Commitment IncreaseIncremental Lender”) by executing shall execute and delivering deliver to the Borrower Agent and the Administrative Agent an Incremental Loan Activation Notice signed by Commitment Agreement, appropriately completed (with the effectiveness of the Incremental Commitment provided therein to occur on the date set forth in such Lenders or such additional lenders and specifying Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (i) all fees required to be paid, which shall not exceed the respective fees payable in connection with the Revolving Loan Commitments on the Closing Date, in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.15 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied) and (II) the Borrower Agent, each Guarantor, the Collateral Agent and each Incremental Lender, as applicable, shall execute and deliver to the Administrative Agent and the Collateral Agent amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments are secured by each relevant Security Document (the “Incremental Security Documents”). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Commitments of such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment and each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Loan Document.
(d) At the time of any provision of Incremental Commitments pursuant to this Section 2.15, the Borrower Agent shall repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders and (ii) including the applicable Commitment Increase Date; providedIncremental Lenders), in each case to the extent necessary so that all of the Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to such any increase in the Total Revolving Loan Commitment Increase (including pursuant to this Section 2.15) and with the incurrence of Borrower Agent being obligated to pay to the respective Lenders any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum costs of the Total Commitments then type referred to in effect Section 2.11 in connection with any such repayment and/or Borrowing.
(including, for e) For the avoidance of doubt, Incremental Commitments) the Borrower Agent shall not exceed $2 billion.
(b) Each have the right to request any Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on Commitments from any Person other than the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) Lenders party to the Company and/or Credit Agreement at the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in of any such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Noticerequest.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment.
Appears in 3 contracts
Samples: Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.)
Incremental Commitments. At any time following the earlier of (ax) completion of the syndication of the Revolving Loan Facility (as reasonably determined by the Administrative Agent) and (y) 90 days after the Closing Date and prior to the Revolving Facility Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request an increase to the existing Revolving Facility Commitments (any such increase, the “Incremental Revolving Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental Term Facility Commitments” and together with the Incremental Revolving Facility Commitments, if any, the “Incremental Commitments”), in an aggregate principal amount, collectively, not to exceed the greater of (x) U.S.$50.0 million and (y) U.S.$100.0 million if on a Pro Forma Basis, after giving effect to the incurrence of such Incremental Term Loans or such Incremental Revolving Facility Commitments, the First Lien Leverage Ratio would not exceed 3.50 to 1.00, or, in each case, a lesser amount in integral multiples of U.S.$5.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall be made available, which shall be a date not less than 5 Business Days after the date on which such notice is delivered to the Administrative Agent. The Company may from time to time Borrower shall notify the Administrative Agent that certain in writing of the Lenders designated by identity of each Revolving Facility Lender or other financial institution (which in any event shall not be the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for Borrower or an Affiliate of the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”Borrower) by executing and delivering reasonably acceptable to the Administrative Agent Agent, and in the case of any Person committing to any Incremental Revolving Facility Commitment, reasonably acceptable to the Issuing Banks and the Swingline Lenders (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Activation Notice signed by Commitment. Such Incremental Commitments shall become effective as of such Lenders or Increased Amount Date, and in the case of Incremental Term Facility Commitments, such additional lenders and specifying new Loans in respect thereof (“Incremental Term Loans”) shall be made on such Increased Amount Date; provided that (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, exist on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on such Increased Amount Date before or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Incremental Commitments and Incremental Term Loans; (ii) the application representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such amounts to prepay Loans under earlier date; (iii) the Facility of other relevant LendersBorrower and its Subsidiaries shall be in compliance, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments on a Pro Forma Basis after giving effect to such increaseIncremental Commitments and Incremental Term Loans, with the covenants contained in Section 6.10 and Section 6.11 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries; (iiiv) such increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Administrative Agent and subject to the requirements set forth in Section 2.17(e); (v) the Company Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments or make any Incremental Term Loans and (vii) if the Applicable Margin for any Incremental Term Loan exceeds the then applicable Applicable Margin for the Revolving Facility by more than 50 basis points (the excess of (A) such Applicable Margin for the Incremental Term Loans over (B) the Applicable Margin for the Revolving Facility plus 50 basis points being the relevant Subsidiary Borrower “Margin Differential”), then each Applicable Margin for the Revolving Facility for each adversely affected existing Revolving Facility Commitment shall automatically be increased by the Margin Differential effective upon the making of the Incremental Term Loan. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to have prepaid the extent (but only to the extent) necessary to reflect the existence and reborrowed all outstanding terms of the Incremental Commitments and the Incremental Term Loans under evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement and (iii) to evidence such amendments without the Company and consent of any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentLender.
Appears in 3 contracts
Samples: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Incremental Commitments. (a) The Company At any time following the Closing Date, the Borrower may from time to time by written notice to the Administrative Agent elect to request an increase to the existing Revolving Facility Commitments (any such increase, the “Incremental Revolving Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental Term Facility Commitments” and together with the Incremental Revolving Facility Commitments, if any, the “Incremental Commitments”), in an aggregate principal amount, collectively, not to exceed $350.0 million, or, in each case, a lesser amount in integral multiples of $5.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall be made available, which shall be a date not less than 5 Business Days (or such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion) after the date on which such notice is delivered to the Administrative Agent. The Borrower shall notify the Administrative Agent that certain in writing of the Lenders designated by identity of each Revolving Facility Lender or other financial institution (which in any event shall not be the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for Borrower or an Affiliate of the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”Borrower) by executing and delivering reasonably acceptable to the Administrative Agent Agent, and in the case of any Person committing to any Incremental Revolving Facility Commitment, to the extent such consent would be required with regard to an assignment to such Person pursuant to Section 9.04, reasonably acceptable to the Issuing Banks and the Swingline Lenders (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Activation Notice signed by Commitment. Such Incremental Commitments shall become effective as of such Lenders or Increased Amount Date, and in the case of Incremental Term Facility Commitments, such additional lenders and specifying new Loans in respect thereof (“Incremental Term Loans”) shall be made on such Increased Amount Date; provided that (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, exist on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on such Increased Amount Date before or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Incremental Commitments and Incremental Term Loans; (ii) [reserved]; (iii) the application of such amounts to prepay Loans under the Facility of other relevant LendersBorrower and its Restricted Subsidiaries shall be in compliance, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments on a Pro Forma Basis after giving effect to such increaseIncremental Commitments (assuming the Revolving Facility Commitments, including any Incremental Revolving Facility Commitments, are fully drawn) and Incremental Term Loans, with the Financial Performance Covenants recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries; (iiiv) such increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Administrative Agent and subject to the requirements set forth in Section 2.17(e); (v) the Company Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; and (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any relevant Subsidiary Borrower Incremental Commitments or make any Incremental Term Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to have prepaid the extent (but only to the extent) necessary to reflect the existence and reborrowed all outstanding terms of the Incremental Commitments and the Incremental Term Loans under evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement and (iii) to evidence such amendments without the Company and consent of any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentLender.
Appears in 3 contracts
Samples: Amendment (Crestwood Equity Partners LP), Credit Agreement (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated Borrower may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Loan Activation Notice signed by Amount available at the time such Incremental Commitments are established (or, solely in connection with clause (ii) of the definition of the term “Incremental Amount,” at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Incremental Term Lenders or and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such additional lenders and specifying Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of such Incremental Lender specified in such Incremental Loan Activation Notice$5,000,000 and a minimum amount of $10,000,000, subject or equal to the terms of this Agreement and the applicable remaining Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase DateAmount or, in the event any Loans under the Facility are then outstandingeach case, (i) each relevant Incremental Lender shall make available to such lesser amount approved by the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increaseAgent), (ii) the Company and any relevant Subsidiary Borrower shall be deemed date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to have prepaid and reborrowed all outstanding Loans under this Agreement and become effective, (iii) in the Company case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Facility Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Facility Loans (“Other Revolving Facility Loans”) and any relevant Subsidiary Borrower shall pay (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentTerm B Loans (“Other Term Loans”).
Appears in 3 contracts
Samples: First Lien Credit Agreement and Security Agreement (Exela Technologies, Inc.), First Amendment to First Lien Credit Agreement (Exela Technologies, Inc.), First Lien Credit Agreement (Exela Technologies, Inc.)
Incremental Commitments. (a) The Company may Borrower may, after the Closing Date, by written notice to the Administrative Agent from time to time, request Incremental Revolving Commitments in an amount not to exceed the Incremental Amount at the time notify such Incremental Revolving Commitments are established from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Commitments in their own discretion; provided, that each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated by the Company and/or that additional lenders Incremental Revolving Commitments being requested (which shall be added in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to this Agreement as the remaining Incremental Lenders with Amount) and (ii) the date on which such Incremental Revolving Commitments for are requested to become effective (the purpose of increasing “Increased Amount Date”). All Incremental Revolving Commitments shall be commitments to make additional Revolving Loans (such additional Revolving Loans, the existing Commitments under the “Incremental Revolving Facility (a “Commitment IncreaseLoans”) by executing on the same terms as (and delivering having the same guarantees as and ranking pari passu in right of payment and of security with), and forming a single Class with, the Revolving Loans made pursuant to the Commitments in effect on the Closing Date (the “Initial Revolving Facility Loans”) or a then existing Class of Extended Revolving Commitments.
(b) The Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Commitment of such Incremental Revolving Lender. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the Incremental Revolving Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Activation Notice signed Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by such Lenders or such additional lenders the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and specifying furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.21 unless (i) on the respective Incremental Commitments date of such effectiveness, to the extent required by the relevant Incremental Lenders Assumption Agreement, the conditions set forth in clauses (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (ii) the applicable Commitment Increase Date; providedAdministrative Agent shall have received customary legal opinions, that after giving effect board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date and such Commitment Increase additional customary documents and filings (including amendments to the incurrence Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Loans in respect of Incremental Commitments are secured by the Collateral ratably with one or more Classes of the then existing Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Incremental Loans Class of Revolving Commitments, on a pro rata basis (based on the applicable Commitment Increase Date aggregate outstanding Revolving Commitments under such Facility, as applicable) and use on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of proceeds thereof) (x) no Default or Event such Lender’s Commitments of Default shall be continuing such Class and (y) to otherwise modify the sum terms of such Lender’s Commitments of such Class pursuant to the terms of the Total Commitments then relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in effect (including, for respect of such Lender’s Commitments). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Revolving Commitments, that all of the Revolving Commitments of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Commitments) Commitment for such Lender (such extended Revolving Commitment, an “Extended Revolving Commitment”, and the Revolving Loans made thereunder “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Revolving Commitment shall be extended, which shall be a date not exceed $2 billionearlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(bf) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Revolving Commitments of such Extending Lender. Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on Assumption Agreement shall specify the terms of the applicable Extended Revolving Commitments; provided, that (i) except as to fees (which fees shall be determined by the Borrower and conditions set forth in the Pro Rata Extension Offer), any Extended Revolving Commitment shall have (x) the same terms as an existing Class of this Revolving Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and (ii) any Extended Revolving Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, to make revolving credit loans (each, an “Incremental Loan”) this Agreement shall be amended to the Company and/or extent (but only to the applicable Subsidiary Borrowers from time extent) necessary to time on or after reflect the Commitment Increase Date existence and terms of the Extended Revolving Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Commitments in the manner specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment Assignment Agreement, including upon effectiveness of such Incremental Lender specified in such Incremental Loan Activation Notice, subject Extended Revolving Commitment or upon or prior to the terms maturity date for any Class of Revolving Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Revolving Commitment will be automatically designated an Extended Revolving Commitment. For purposes of this Agreement and the applicable Incremental other Loan Activation Notice. Nothing in this Section 2.27 shall Documents, such Extending Lender will be construed deemed to obligate any Lender to execute have an Incremental Loan Activation NoticeCommitment having the terms of such Extended Revolving Commitment.
(ch) On Notwithstanding anything to the contrary set forth in this Agreement or any Commitment Increase Date, in the event any Loans under the Facility are then outstandingother Loan Document (including without limitation this Section 2.21), (i) each relevant the aggregate amount of Extended Revolving Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Revolving Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Revolving Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Revolving Commitment), (iv) there shall make available be no condition to any Extension of any Commitment at any time or from time to time other than notice to the Administrative Agent of such amounts in immediately available funds as Extension and the Administrative Agent shall determine are necessary in order terms of the Extended Revolving Commitment implemented thereby pursuant to causethe applicable Incremental Assumption Agreement, after giving effect to such increased (v) all Extended Revolving Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments obligations in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower respect thereof shall be deemed to have prepaid and reborrowed all outstanding Loans Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents and (iiivi) no Issuing Bank or Swingline Lender shall be obligated to provide Swingline Loans or issue Letters of Credit under such Extended Revolving Commitments unless it shall have consented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the Company and any relevant Subsidiary associated Pro Rata Extension Offer; provided, that the Borrower shall pay cooperate with the Administrative Agent prior to the relevant Lenders the amountsmaking any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, if anyincluding, payable under Section 2.22 as a result of such prepaymentwithout limitation, timing, rounding and other adjustments.
Appears in 3 contracts
Samples: Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.)
Incremental Commitments. (a) The Company Borrower may from time by written notice to time notify the Administrative Agent that certain of elect to request (A) at any time prior to the Lenders designated by the Company and/or that additional lenders shall be added Commitment Termination Date, an increase to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (each, a “Commitment Increase”) by executing and/or (B) the establishment of one or more new term loan commitments (the “New Term Loan Commitments” and, together with each Commitment Increase, the “Incremental Commitments”) up to an aggregate amount not to exceed $25,000,000, in increments not less than $10,000,000 individually, and delivering integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increase Date”) on which Borrower proposes that the Commitment Increase or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to Administrative Agent and (B) the identity of each Lender or other Person (other than the Borrower or an Affiliate thereof or any natural person) reasonably acceptable to the Administrative Agent Agent, Issuing Bank and Swing Line Lender (each, an “Incremental Loan Activation Notice signed by such Lenders Revolving Lender “ or such additional lenders “Incremental Term Lender”, as applicable, and specifying (icollectively, the “ Incremental Lenders”) the respective Incremental Commitments to whom Borrower proposes any portion of such Incremental Lenders Commitment Increase or New Term Loan Commitments, as applicable, be allocated and (ii) the applicable amounts of such allocations; provided that Administrative Agent shall have no obligation to arrange such Commitment Increase or New Term Loan Commitments unless otherwise agreed in writing and any Lender approached to provide all or a portion of the Commitment Increase or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a Commitment Increase or a New Term Loan Commitment. Such Commitment Increase or New Term Loan Commitments shall become effective, as of such Increase Date; provided, provided that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x1) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, exist on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment such Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, before or after giving effect to such increased Incremental Commitments; (2) after giving effect to the incurrence of such Incremental Commitments and the application of proceeds therefrom, and assuming a full drawing of such amounts to prepay Loans under New Term Loan Commitments or Commitment Increase as applicable, but without “netting” the Facility of other relevant Lenderscash proceeds thereof, the Loans under Consolidated Total Leverage Ratio, calculated on a Pro Forma Basis as of the Facility last day of the fiscal quarter most recently ended for which financial statements are required to be held ratably by all Lenders with Commitments in delivered pursuant to Section 5.1, shall not exceed the Facility in accordance with maximum Consolidated Total Leverage Ratio permitted under Section 6.12 for such Commitments period, (3) both before and after giving effect to the incurrence of such increaseIncremental Commitments and the application of proceeds therefrom, each of the conditions set forth in Section 4.2 shall be satisfied (iiexcept as otherwise agreed by the Administrative Agent and each applicable Incremental Lender); (4) the Company Commitment Increase or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more joinder agreements in form and any relevant Subsidiary substance reasonably satisfactory to the Borrower and the Administrative Agent executed and delivered by Borrower, the applicable Incremental Lender, and Administrative Agent; (5) Borrower shall be deemed make any payments required pursuant to have prepaid and reborrowed all outstanding Loans under this Agreement Section 2.15 in connection with such Incremental Commitments; and (iii6) the Company and any relevant Subsidiary Borrower shall pay deliver or cause to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such prepaymenttransaction.
Appears in 2 contracts
Samples: Revolving Credit and Guaranty Agreement (Fitbit Inc), Revolving Credit and Guaranty Agreement (Fitbit Inc)
Incremental Commitments. (a) The Company Borrower may from time to time notify the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect elect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) request (x) no Default or Event of Default shall be continuing and (y) prior to the sum of Revolving Commitment Termination Date, an increase to the Total existing Revolving Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental LoanRevolving Commitment”, and any such increase, an “Incremental Revolving Facility”) to and/or (y) the Company and/or establishment of one or more new term loan commitments (each, an “Incremental Term Commitment” (and together with the applicable Subsidiary Borrowers from time to time on or after Incremental Revolving Commitments, the Commitment Increase Date specified in “Incremental Commitments”), and any such increase, an “Incremental Loan Activation Notice in Term Facility” and, together with any Incremental Revolving Facility, the “Incremental Facilities”), by an aggregate principal amount outstanding at any time up to but not exceeding the amount in excess of the Incremental Available Amount; provided that, with respect to any Incremental Term Commitment the primary purpose of which is to finance a Permitted Acquisition or similar Investment permitted by this Agreement, whose consummation is not conditioned on the availability of, or on obtaining, financing, the Incremental Ratio Amount may, at the Borrower’s option, be tested on a pro forma basis giving effect to such Permitted Acquisition or similar Investment, as applicable, at the time the definitive agreements for such Permitted Acquisition or similar Investment, as applicable, are entered into rather than at the time of incurrence of the Incremental Term Loans (and, in connection with any subsequent calculation of such Incremental Lender specified in such Incremental Loan Activation Notice, subject ratio or any incurrence ratio under Section 7.01(a)(xxiii) prior to the terms consummation or termination of this Agreement such Permitted Acquisition or similar Investment, as applicable, such ratio shall be calculated on a pro forma basis giving effect to such Permitted Acquisition or similar Investment, as applicable, and other transactions in connection therewith (including any incurrence of Indebtedness and the applicable Incremental Loan Activation Noticeuse of proceeds thereof)). Nothing in this Section 2.27 Each such notice shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, specify (i) each relevant the date (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental Lender Commitments shall make available be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such amounts in immediately available funds shorter period as may be agreed to by the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments its sole discretion) and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company identity of each Lender to whom the Borrower proposes any portion of such Incremental Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment. Each Incremental Commitment shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Incremental Commitments set forth in above).
(b) The proceeds in connection with any Incremental Commitment may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of Permitted Acquisitions and other Investments and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) other use not prohibited by the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentLoan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Griffon Corp), Credit Agreement (Griffon Corp)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated Borrower may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent from time to time, request that the Total Revolving Credit Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Loan Activation Notice signed Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Revolving Credit Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Revolving Credit Commitment by its Pro Rata Percentage of the proposed increased amount. Each Revolving Credit Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Revolving Credit Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Revolving Credit Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Credit Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Revolving Credit Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Credit Commitments by an aggregate amount less than the increase in the Total Revolving Credit Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such additional lenders and specifying bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Revolving Credit Commitments or increase their existing Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Revolving Credit Lender and no Revolving Credit Lender’s Revolving Credit Commitment shall increase pursuant to this Section 2.23 without the respective Incremental Commitments prior written consent of such Incremental Lenders the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the applicable L/C Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) Issuing Bank shall not exceed $2 billionbe increased pursuant to this Section 2.23 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Credit Commitment and/or its status as a Revolving Credit Lender hereunder. Any increase in the Revolving Credit Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Revolving Credit Commitment pursuant to this Section 2.23, the outstanding Revolving Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of such Incremental Lender specified the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in such Incremental Loan Activation Notice, this paragraph (b) shall be subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice2.16, but otherwise without premium or penalty.
(c) On any Commitment Increase DateNotwithstanding the foregoing, no increase in the event any Loans Total Revolving Credit Commitment shall become effective under the Facility are then outstandingthis Section 2.23 unless, (i) each relevant Incremental Lender on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall make available to be satisfied and the Administrative Agent shall have received a certificate to that effect dated such amounts in immediately available funds date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentreasonably requested.
Appears in 2 contracts
Samples: Credit Agreement (Laboratory Corp of America Holdings), Credit Agreement (Laboratory Corp of America Holdings)
Incremental Commitments. (a) The Company may U.S. Borrower or the Dutch Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Loans, as the case may be, in their own discretion; provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Lenders designated by the Company Incremental Term Loan Commitments and/or that additional lenders Incremental Revolving Facility Commitments being requested (which shall be added in minimum increments of $1.0 million and a minimum amount of $25.0 million or equal to this Agreement as the remaining Incremental Lenders with Amount), (ii) the date on which such Incremental Term Loan Commitments for and/or Incremental Revolving Facility Commitments are requested to become effective (the purpose of increasing the existing Commitments under the Facility (a “Commitment IncreaseIncreased Amount Date”) by executing and delivering (iii) (a) whether such Incremental Term Loan Commitments are to be Tranche C-1 Term Loan Commitments, Tranche C-2 Term Loan Commitments, Tranche C-4 Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Tranche C-1 Term Loans, the Tranche C-2 Term Loans and the Tranche C-4 Term Loans (“Other Term Loans”) and/or (b) whether such Incremental Revolving Facility Commitments are to be Canadian Tranche Commitments, European Tranche Commitments, U.S. Tranche Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Canadian Tranche Revolving Facility Loans, European Tranche Revolving Facility Loans and U.S. Tranche Revolving Facility Loans (“Other Revolving Facility Loans”).
(b) The U.S. Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Activation Notice signed by Commitment of such Lenders or Incremental Term Lender and/or Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving Facility Loans to be made thereunder; provided that (i) the respective Incremental Commitments Other Term Loans and Other Revolving Facility Loans shall rank pari passu or junior in right of such Incremental Lenders payment and of security with the Tranche C-1 Term Loans, Tranche C-2 Term Loans, Tranche C-4 Term Loans and Revolving Facility Loans and (except as to pricing and amortization) shall have the same terms as the Tranche C-1 Term Loans, Tranche C-2 Term Loans or Tranche C-4 Term Loans, as applicable, (ii) the applicable Commitment Increase final maturity date of (a) any Other Term Loans shall be no earlier than the Term Loan Maturity Date and/or (b) any Other Revolving Facility Loans shall be no earlier than the Revolving Facility Maturity Date; providedprovided that any Other Term Loans and any Other Revolving Facility Loans may provide for an acceleration of their maturity to an Early Maturity Test Date if, on such Early Maturity Test Date, the aggregate principal amount of Early Maturity Notes that mature within 91 days after such Early Maturity Test Date exceeds $200.0 million, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans and (iv) the Other Revolving Facility Loans shall require no scheduled amortization or mandatory commitment reductions prior to the Revolving Facility Maturity Date; provided further that the interest rate margin (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan) in respect of any Other Term Loan and/or Other Revolving Facility Loan shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Term Loan and/or Other Revolving Facility Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan) may exceed the Applicable Margin for the Term Loans and/or the Revolving Facility Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term Loans and/or the Revolving Facility Loans), respectively, by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such Applicable Margin (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term Loans and/or the Revolving Facility Loans), such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Term Loan or Other Revolving Facility Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan), is no more than 1/2 of 1% higher than the Applicable Margin for the Term Loans or the Revolving Facility Loans, respectively (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term Loans and/or the Revolving Facility Loans). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the U.S. Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the U.S. Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 4.02 of the 2005 Credit Agreement and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Incremental Revolving Facility Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the U.S. Borrower would be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment Increase (including the incurrence of any and/or Incremental Loans on the applicable Commitment Increase Date Revolving Facility Commitments and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Term Loans and/or Incremental Lender specified in such Incremental Loan Activation Notice, subject Revolving Facility Loans to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay ensure that all Incremental Term Loans and/or Incremental Revolving Facility Loans (other than Other Term Loans or Other Revolving Facility Loans), when originally made, are included in each Borrowing of outstanding Term Loans or Revolving Facility Loans under the Facility same Tranche on a pro rata basis, and the Borrowers agree that Section 2.17 shall apply to any conversion of other relevant Lenders, Eurocurrency Loans to ABR Loans or Base Rate Loans reasonably required by the Loans under Administrative Agent to effect the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Hexion Specialty Chemicals, Inc.), Credit Agreement (Hexion Specialty Chemicals, Inc.)
Incremental Commitments. (a) The Company Borrower may on one or more occasions, by written notice to the Administrative Agent, request (x) Incremental Term Loan Commitments from time one or more Incremental Term Lenders, which may include any existing Lender, and (y) in the event that the Revolving Facility is terminated (other than in connection with the incurrence of Permitted Refinancing Indebtedness in respect thereof) and the Liens granted to time notify secure obligations thereunder released, lending commitments hereunder in respect of one or more revolving facilities (“Incremental Revolving Commitments”) from one or more lenders, which may include any existing Lender; provided that (i) each Incremental Term Lender (if not already a Lender hereunder) and each lender (an “Incremental Revolving Lender” and, together with any Incremental Term Lender, an “Incremental Lender”) in respect of any such revolving facility (an “Incremental Revolving Facility” and, together with the Other Term Loans of any Class, an “Incremental Facility”), shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld or delayed) and (ii) the aggregate amount of Incremental Term Loan Commitments and Incremental Revolving Commitments shall not exceed the initial Incremental Commitment Amount minus any reductions thereof pursuant to Section 2.13(c). Such notice shall set forth (i) the amount of the Lenders designated by Incremental Term Loan Commitments or Incremental Revolving Commitments, as applicable, being requested (which shall not exceed the Company and/or that additional lenders then-current Incremental Commitment Amount and shall be added in minimum increments of $5,000,000 and a minimum amount of $20,000,000 or equal to the remaining Incremental Commitment Amount) and (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Commitments, as applicable, are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (which time periods for notice may be modified or waived at the discretion of the Administrative Agent)). Each Class of Incremental Term Commitments established under this Agreement Section 2.22 is referred to herein as Incremental Lenders “Other Term Loans” and will rank pari passu in right of payment with Commitments for the purpose of increasing Term Loans and will benefit equally and ratably from the existing Commitments Liens under the Security Documents. Each Class of Other Term Loans will have terms and conditions substantially identical to those applicable to the Term Loan Commitments and the Term Loans (other than with respect to pricing, amortization, maturity and any different drawing conditions that are agreed to in the applicable Incremental Term Loan Assumption Agreement) and will be otherwise on the terms and subject to the conditions reasonably satisfactory to the Administrative Agent. The extensions of credit pursuant to each Class of Incremental Revolving Commitments established under this Section 2.22 (which may include both loans and letters of credit) will rank pari passu in right of payment and (except with respect to certain cash collateral required to be posted under certain circumstances to secure letter of credit reimbursement obligations) will benefit equally and ratably with the Term Loans from the Liens under the Security Documents with respect to the Collateral and may have such other customary terms and provisions (including with respect to pricing, amortization of commitments, maturity and lending conditions) as may be agreed to in the applicable Incremental Revolving Facility Assumption Agreement and as are reasonably satisfactory to the Administrative Agent, provided that, so long as Term Loans or Other Term Loans of any Class are outstanding hereunder, the Incremental Revolving Commitments of any Class and loans or other credit extensions thereunder shall not be subject to mandatory reductions or prepayments from (a “Commitment Increase”or calculated on the basis of) by executing the Net Cash Proceeds from Asset Sales or issuances of Indebtedness or from portions of Excess Cash Flow that, in any case, are required hereunder, prior to giving effect to any Incremental Revolving Facility, to be applied to the prepayment of Term Loans or Other Term Loans.
(b) The Borrower and delivering each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Activation Notice signed by such Lenders Assumption Agreement or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Revolving Facility Assumption Agreement, as the case may be, and such other documentation as the Administrative Agent shall reasonably specify to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of evidence the Incremental Commitment of such Incremental Lender specified in such Lender. Each Incremental Term Loan Activation Notice, subject to Assumption Agreement shall specify the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall Other Term Loans to be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Datemade thereunder; provided that, in without the event any Loans under prior written consent of Term Lenders holding a majority of the Facility are then outstandingprincipal amount of the outstanding Term Loans, (i) each relevant Incremental Lender the final maturity date of any Other Term Loans shall make available to be no earlier than the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increaseTerm Loan Maturity Date, (ii) the Company Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the average life to maturity of the Term Loans and (iii) if the interest rate spread applicable to any relevant Subsidiary Borrower Other Term Loans (which, for this purpose, shall be deemed to have prepaid include all upfront or similar fees or original issues discount, but excluding any underwriting, arrangement, structuring or other fees payable in connection therewith that are not generally shared with the Lenders (collectively, “Upfront Payments”), in each case, paid to the Incremental Lenders in respect of such Other Term Loans) exceeds the interest rate spread applicable to the Term Loans (taking into account the Upfront Payments paid to the Lenders in respect of the establishment of the Term Loans) by more than 0.25%, then the interest rate spread applicable to the Term Loans shall be increased so that it equals (after taking into account Upfront Payments made in respect of the establishment of the Term Loans) the interest rate spread applicable to the Other Term Loans. For purposes of the foregoing, any original issue discount associated with the Term Loans or any Other Term Loans will be converted to an interest rate spread equivalent by dividing the percentage amount of such original issue discount by the lesser of (A) the Weighted Average Life to Maturity of such Loans and reborrowed all outstanding Loans (B) four.
(i) Each Incremental Facility Agreement shall require the consent of only the Borrower, the Administrative Agent and the Incremental Lenders providing the applicable Incremental Facility, but, in each case, not the consents of any other Lenders. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Facility Agreement, this Agreement and the other Loan Documents (other than the Intercreditor Agreement) shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Facility evidenced thereby, including the amount and final maturity thereof, any provisions relating to amortization and the interest to accrue and be payable thereon and any fees to be payable in respect thereof, and to effect such other changes (including changes to the provisions of Sections 2.16 and 9.08(b), the definition of “Required Lenders” and any other provisions of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights under the Loan Documents or make any determination or grant any consent under the Loan Documents) as the Borrower and the Administrative Agent shall deem necessary or advisable in connection with the establishment of such Incremental Facility. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Facility Agreement shall become effective under this Agreement Section 2.22 unless (i) on the date of such effectiveness and after giving effect to the making of any Other Term Loans contemplated thereby or the full utilization of the Incremental Revolving Commitments contemplated thereby, the Consolidated Senior Secured Leverage Ratio would be less than 3.00 to 1.00, (ii) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.03 shall be satisfied and (iii) the Company Administrative Agent shall have received legal opinions, board resolutions and any relevant Subsidiary Borrower other closing certificates and documentation as it shall pay reasonably request relating to such Incremental Facility, consistent with those delivered on the Funding Date pursuant to Section 4.02. The Administrative Agent shall promptly notify each Lender as to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result effectiveness of such prepaymenteach Incremental Facility Agreement.
Appears in 2 contracts
Samples: Credit Agreement (SMURFIT-STONE CONTAINER Corp), Credit Agreement (Smurfit Stone Container Corp)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated by the Company Incremental Term Loan Commitments and/or that additional lenders Incremental Revolving Facility Commitments being requested (which shall be added in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to this Agreement as the remaining Incremental Lenders Amount), (ii) the aggregate amount of all Incremental Term Loan Commitments and Incremental Revolving Facility Commitments taken together shall not exceed $285,000,000, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iv) in the case of Incremental Revolving Loan Commitments, whether such Incremental Revolving Loan Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Revolving Loans”), and (v) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments for are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the purpose of increasing the existing Commitments under the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility (a “Commitment Increase”) by executing Lender shall execute and delivering deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Activation Notice signed by Commitment of such Lenders or Incremental Term Lender and/or Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the respective Incremental Commitments Other Term Loans shall rank pari passu or junior in right of such Incremental Lenders payment and of security with the Term B Loans, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (iv) the Other Revolving Loans shall rank pari passu or junior in right of payment and of security with the Revolving Loans, (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (vi) the weighted average life to maturity of any Other Revolving Loans shall be no shorter than the remaining weighted average life to maturity of the Revolving Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Commitment Increase Date; providedIncremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, that junior to) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment Increase (including the incurrence of any and/or Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Revolving Facility Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall Loans to be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay ensure that (i) all Incremental Term Loans under the Facility of (other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments than Other Term Loans) in the Facility form of additional Term B Loans, when originally made, are included in accordance with such Commitments after giving effect to such increaseeach Borrowing of outstanding Term B Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Company and any relevant Subsidiary Borrower shall be deemed Administrative Agent to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) effect the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Verso Paper Holdings LLC), Credit Agreement (Verso Sartell LLC)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, on one or more occasions, request Incremental Commitments in an additional aggregate principal amount not to exceed the Incremental Commitment Cap from one or more Incremental Lenders (which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion)) willing to provide such Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent that certain of (which approval shall not be unreasonably withheld, delayed or conditioned), the Lenders designated by Swingline Lender (which approval shall not be unreasonably withheld, delayed or conditioned) and the Company and/or that additional lenders Borrower (in its sole discretion) unless such Incremental Lender is a Lender, and (ii) each Incremental Commitment shall be added to this Agreement on the same terms as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under (except with respect to any underwriting, upfront or similar fees that may be agreed to among the Facility Borrower and the Incremental Lenders providing such Incremental Commitments) and in all respects shall become a part of the Commitments hereunder on such terms; provided, that, with the consent of the Borrower, the Applicable Rate and Commitment Fee Rate applicable to the then existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (1) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Amount), (2) the aggregate amount of Incremental Commitments, which shall not exceed the Incremental Amount, and (3) the date on which such Incremental Commitments are requested to become effective (the “Commitment IncreaseIncreased Amount Date”). The Borrower shall have no obligation to offer any Lender the opportunity to participate in any Incremental Commitments.
(b) by executing The Borrower and delivering each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such Lenders or such additional lenders deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and specifying furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.22 unless (i) on the respective Incremental Commitments date of such Incremental Lenders effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, and (ii) the applicable Commitment Increase Date; providedAdministrative Agent shall have received legal opinions, that after giving effect board resolutions and other closing certificates and documentation to such Commitment Increase (including the incurrence of any Incremental Loans extent reasonably required by the Administrative Agent, in each case consistent with those delivered on the applicable Commitment Increase Effective Date under Section 4.01 and use of proceeds thereof) (x) no Default or Event of Default shall be continuing such additional documents and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds filings as the Administrative Agent shall determine are necessary in order may reasonably require to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, assure that the Loans under in respect of Incremental Commitments are secured by the Facility Collateral ratably with all other Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to be held ratably by ensure all Lenders with Commitments Revolving Loans in the Facility respect of Incremental Commitments, when originally made, are included in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all each Borrowing of outstanding Revolving Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as on a result of such prepaymentpro rata basis.
Appears in 2 contracts
Samples: Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.)
Incremental Commitments. (a) The Company Borrower may from time to time notify time, by written notice to the Administrative Credit Facility Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Working Capital Commitment Increase Notice”), request increases in the Working Capital Commitments (together with any applicable corresponding increases in the Issuing Bank Limits) of the relevant Working Capital Lender, Issuing Bank or by any other Person that is an Eligible Assignee or satisfies the rating requirement set forth in the definition of “Issuing Bank,” as applicable (each, a “Working Capital Commitment Increase”) by executing and delivering ), up to an aggregate principal amount not to exceed the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments maximum amount of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect Working Capital Debt permitted pursuant to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereofSection 6.2(a) (xWorking Capital Debt) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billionCommon Terms Agreement.
(b) Each The Working Capital Commitment Increase Notice shall specify (i) the date on which the Borrower proposes that such Working Capital Commitment Increase shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to the Credit Facility Agent (or, subject to clause (c)(iii)(E) below, such shorter period of time as agreed by the Incremental Lender Lender/Issuing Banks (as defined below) participating in such Working Capital Commitment Increase), (ii) the amounts of the Working Capital Commitment Increase (including any proposed increase in Non-Fronting Limit or Fronting Limit of an Issuing Bank) and (iii) the identity of each Working Capital Lender, Issuing Bank or other Person that is a signatory to an Incremental Loan Activation Notice severally agrees, on Eligible Assignee or satisfies the terms and conditions rating requirement set forth in the definition of this Agreement, to make revolving credit loans “Issuing Bank,” as applicable (each, an “Incremental LoanLender/Issuing Bank”) to whom the Company and/or Borrower proposes any portion of the applicable Subsidiary Borrowers from time to time on or after the Working Capital Commitment Increase Date specified in be allocated and the amounts of such Incremental Loan Activation Notice in an aggregate principal amount outstanding at allocations; provided that, any time up Working Capital Lender, Issuing Bank or other Person approached to but not exceeding the amount provide all or a portion of the Incremental Working Capital Commitment of such Incremental Lender specified Increase may elect or decline, in such Incremental Loan Activation Noticeits sole and absolute discretion, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Noticeparticipate.
(c) On any Each Working Capital Commitment Increase Dateshall become Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) (or, in the event any Loans case of an increase in the commitment of an existing Working Capital Lender or Issuing Bank, an increase in such Working Capital Lender’s or Issuing Bank’s applicable Working Capital Commitment, Issuing Bank Limit, Non-Fronting Limit or Fronting Limit (as applicable)) under this Agreement pursuant to an amendment (such amendment, an “Incremental Amendment”) to this Agreement executed by the Borrower, the Credit Facility are then outstanding, Agent and each Incremental Lender/Issuing Bank (with the consent of no other Working Capital Lender being required) which provides solely for (i) the increase in the applicable Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) proposed in the applicable Working Capital Commitment Increase Notice and consented to by the applicable Incremental Lender/Issuing Bank, (ii) amendments required to reflect the relative unfunded Commitments of the Incremental Lenders/Issuing Banks and (iii) the joinder of each relevant Incremental Lender/Issuing Bank that is not already an existing Working Capital Lender or Issuing Bank party to this Agreement. The effectiveness of any Incremental Amendment shall make available be subject solely to the Administrative Agent conditions that (A) no Loan Facility Event of Default or Unmatured Loan Facility Event of Default shall exist on such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, date of effectiveness before or after giving effect to such increased Commitments Working Capital Commitment Increase, (B) each Incremental Lender/Issuing Bank that is not already a Working Capital Lender shall be entitled to receipt of any required reliance letters in respect of the legal opinions provided to the Credit Facility Agent pursuant to Section 4.1(f) (Conditions to Initial Closing Date and Initial Advance – Opinions from Counsel) of the application Common Terms Agreement or Section 4.2(f) (Conditions to Upsize Closing Date – Opinions from Counsel) of such amounts the Common Terms Agreement, as applicable, (C) since the time of the financial statements most recently provided pursuant to prepay Loans under Section 10.1(a) (Accounting, Financial and Other Information) of the Facility of other relevant LendersCommon Terms Agreement no developments have occurred which, the Loans under the Facility to be held ratably by all Lenders with Commitments individually or in the Facility aggregate have resulted in accordance with such Commitments after giving effect or could reasonably be expected to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as result in a result of such prepayment.Material Adverse Effect,
Appears in 2 contracts
Samples: Credit Facility Agreement (Venture Global, Inc.), Credit Facility Agreement (Venture Global, Inc.)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated Borrowers may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent on two occasions during the period from the Closing Date to the date five Business Days prior to the Maturity Date, request incremental Commitments in an Incremental amount not less than $25,000,000 per request and not more than $150,000,000 in the aggregate from one or more additional Lenders (which may include any existing Lender, each, a “New Term Loan Activation Notice signed by Lender”) willing to provide such Lenders incremental Commitments in their own discretion; provided, that each New Term Loan Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such New Term Loan Lender is a Lender or such additional lenders and specifying an Affiliate of a Lender. Such notice shall set forth (i) the respective Incremental amount of the incremental Commitments of such Incremental Lenders being requested, and (ii) the applicable date on which such incremental Commitments are requested to become effective (the “Increased Amount Date”). On any Increased Amount Date on which any such incremental Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to the Borrowers (a “New Term Loan”) in an amount equal to its incremental Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to such incremental Commitment Increase Date; providedand the New Term Loans made pursuant thereto. The terms and provisions of the New Term Loans and the incremental Commitments shall be identical to the existing Loans.
(b) The Borrowers and each New Term Loan Lender shall execute and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence the incremental Commitment of such New Term Loan Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Credit Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments and New Term Loans evidenced thereby (including adjusting the Commitment Percentages), and new Notes shall be issued and the Borrowers shall make such borrowings without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by the Borrowers upon any such incremental Commitments shall be agreed upon by the Administrative Agent, the New Term Loan Lenders and the Borrowers at the time of such increase. Notwithstanding the foregoing, nothing in this Section 2.7 shall constitute or be deemed to constitute an agreement by any Lender to increase its Commitment hereunder.
(c) Notwithstanding the foregoing, no incremental Commitment shall become effective under this Section 2.7 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.2 shall be satisfied assuming a Loan were then being made and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of BRT, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Effective Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrowers shall be in pro forma compliance with the covenants set forth in Section 7.2 after giving effect to such Commitment Increase (including incremental Commitments, the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall to be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay Loans under the Facility ensure that all New Term Loans, when originally made, are included in each borrowing of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as on a result of such prepaymentpro rata basis.
Appears in 2 contracts
Samples: Term Loan Agreement (Brandywine Operating Partnership, L.P.), Term Loan Agreement (Brandywine Operating Partnership, L.P.)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders and each Swingline Lender (which approval shall not be unreasonably withheld or delayed) unless such Incremental Lender is a Lender, and (ii) each Incremental Commitment shall be added to this Agreement on the same terms as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under and in all respects shall become a part of the Facility Commitments hereunder on such terms; provided, that, the Applicable Margin and Commitment Fee Rate applicable to the then-existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1 million and a minimum amount of $25 million (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Commitments, which shall not exceed the Incremental Amount, and (iii) the date on which such Incremental Commitments are requested to become effective (the “Commitment IncreaseIncreased Amount Date”).
(b) by executing The Borrower and delivering each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such Lenders or such additional lenders deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and specifying furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.17 unless (i) on the respective Incremental Commitments date of such Incremental Lenders effectiveness, the conditions set forth in paragraphs (c) and (d) of Section 4.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, and (ii) the applicable Commitment Increase Date; providedAdministrative Agent shall have received legal opinions, that after giving effect board resolutions and other closing certificates and documentation to such Commitment Increase (including the incurrence of any Incremental Loans extent reasonably required by the Administrative Agent, in each case consistent with those delivered on the applicable Commitment Increase Closing Date under Section 4.1 and use of proceeds thereof) (x) no Default or Event of Default shall be continuing such additional documents and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds filings as the Administrative Agent shall determine may reasonably require to assure that the Revolving Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in order to causerespect of Incremental Commitments, after giving effect to such increased Commitments and the application when originally made, are included in each Borrowing of such amounts to prepay outstanding Revolving Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as on a result of such prepaymentpro rata basis.
Appears in 2 contracts
Samples: Credit Agreement (Investment Technology Group, Inc.), Credit Agreement (Investment Technology Group, Inc.)
Incremental Commitments. (a) The Company Borrower may from time on one or more occasions, by written notice to time notify the Administrative Agent Agent, request prior to the Maturity Date, the establishment of Incremental Commitments; provided that certain the aggregate, cumulative amount of the Lenders designated by the Company and/or that additional lenders shall be added all Incremental Commitments established pursuant to this Agreement as Incremental Lenders with Commitments for Section 2.19 after the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by Closing Date shall not exceed $150,000,000. Each such Lenders or such additional lenders and specifying notice shall specify (i) the respective date on which the Borrower proposes that the Incremental Commitments of shall be effective, which shall be a date not less than 10 Business Days (or such Incremental Lenders and shorter period as may be agreed to by the Agent) after the date on which such notice is delivered to the Agent, (ii) the applicable amount of the Incremental Commitments being requested and (iii) the identity of each Lender or other Person that the Borrower proposes become an Incremental Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment Increase Date; providedfor each such Lender or other Person (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any such Person that after giving effect is not a Lender must be an Eligible Assignee that is reasonably acceptable to such Commitment Increase the Agent and each Issuing Bank).
(including the incurrence b) The terms and conditions of any Incremental Commitment and Loans on and other extensions of credit to be made thereunder shall be identical to the applicable Commitment Increase Date terms and use conditions of proceeds thereofthe Commitments and Loans and other extensions of credit made thereunder.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Agent; provided that no Incremental Commitments shall become effective unless (xi) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of the Borrower set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects, and (yB) otherwise, in all material respects, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in compliance with the covenants set forth in Section 6.12 on a pro forma basis as if such Loans or other extensions of credit had been incurred or assumed on the first day of the Test Period most recently ended on or prior to the date of such effectiveness, (iv) the sum Borrower shall make any payments required to be made pursuant to Section 2.14 in connection with such Incremental Commitments and the related transactions under this Section 2.19 and (v) the Borrower shall have delivered to the Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Total Agent, to give effect to the provisions of this Section 2.19.
(d) Upon effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the aggregate amount of the Lenders’ Commitments then shall be increased by the amount of such Incremental Commitment, in effect (includingeach case, for subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Credit Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentages of all the Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of the effectiveness of any Incremental Commitments, each Lender shall be deemed to have assigned to each Incremental Lender holding such Incremental Commitments, and each such Incremental Lender shall be deemed to have purchased from each Lender, in an amount equal to the principal amount thereof (together with accrued and unpaid interest), such interests in the Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders (including such Incremental Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitments. Any Loans outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are Eurodollar Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Lenders holding such Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time such Loans will be repaid or refinanced with new Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Lenders (including the Incremental Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Loans of other Lenders so that, after giving effect thereto, all Loans that are Eurodollar Loans are held by the Lenders (including the Incremental Lenders) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, apply thereto. Any ABR Loans outstanding on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount date of the Incremental Commitment effectiveness of such Incremental Lender specified in Commitments shall either be prepaid on such Incremental Loan Activation Notice, date or refinanced on such date (subject to the terms satisfaction of this Agreement and applicable borrowing conditions) with Loans made on such date by the applicable Lenders (including the Incremental Loan Activation NoticeLenders) in accordance with their Applicable Percentages. Nothing in this Section 2.27 shall be construed In order to obligate effect any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstandingsuch refinancing, (i) each relevant Incremental Lender shall will make available ABR Loans by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Lender’s Incremental Commitment by the aggregate amount of the Lenders’ Commitments (after giving effect to the effectiveness of the Incremental Commitments on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR Loans held by the Lenders other than the Incremental Lenders, and transferred by the Agent to the Lenders other than the Incremental Lenders, in such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to causeso that, after giving effect to such increased Commitments and the application of such amounts to prepay thereto, all ABR Loans under the Facility of other relevant Lenders, the Loans under the Facility to will be held ratably by all the Lenders with Commitments in the Facility in accordance with their then-current Applicable Percentages. On the date of the effectiveness of such Commitments Incremental Commitments, the Borrower will pay to the Agent, for the accounts of the Lenders receiving such prepayments, accrued and unpaid interest on the aggregate principal amount of the Loans of the Borrower being prepaid. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) The Agent shall notify Lenders promptly upon receipt by the Agent of any notice from the Borrower referred to in Section 2.19 and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect to such increase, (ii) thereto and of the Company and any relevant Subsidiary Borrower shall be assignments deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay been made pursuant to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment2.19(e).
Appears in 2 contracts
Samples: Revolving Credit Agreement (OM Asset Management PLC), Revolving Credit Agreement (OM Asset Management PLC)
Incremental Commitments. (a) The Company may from time may, upon five (5) Business Days’ notice to time notify the Administrative Agent that certain Agent, increase the Revolving Loan Commitment amount by adding one or more lenders or increasing the Revolving Loan Commitment of the Lenders designated a Lender, determined by the Company and/or that additional in its sole discretion, subject to the consent of the Administrative Agent, Swingline Lender and Issuing Banks (such consent not to be unreasonably withheld), which lender or lenders shall be added are willing to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility commit to such increase (each such lender, a “Commitment IncreaseNew Lender,” and such commitment, the “Incremental Commitment”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying ); provided, however, that (i) the respective Company may not elect any Incremental Commitments Commitment after the occurrence and during the continuance of such Incremental Lenders and (ii) the applicable Commitment Increase Date; providedan Event of Default, including, without limitation, any Event of Default that would result after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment, (ii) each Incremental Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and in an amount not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (yiii) after giving effect to all Incremental Commitments the sum of the Total aggregate Revolving Loan Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed the Dollar Equivalent of $2 billion.
5,500,000,000 and (biv) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount effective date of the Incremental Commitment of such Incremental Commitment, each New Lender specified in such Incremental Loan Activation Noticewill, subject to the terms extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Revolving Loan Commitments. An Incremental Commitment shall become effective upon the execution by each applicable New Lender of a counterpart of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available delivering such counterpart to the Administrative Agent such amounts in immediately available funds as Agent. Over the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and term of the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) Agreement the Company and shall increase the Revolving Loan Commitments no more than five (5) times. Notwithstanding anything to the contrary in this Agreement, any relevant Subsidiary Borrower Incremental Commitment made pursuant to this Section 2.14 may be effected by adding one or more tranches of Revolving Loan Commitments that are denominated in an Alternative Currency and/or term loan commitments (which shall be deemed to have prepaid be “Revolving Loan Commitments” for purposes of this Section 2.14 (other than clause (iv) above)), and reborrowed all outstanding Loans under this Agreement and (iii) the Lenders agree that any amendment required to implement an Incremental Commitment may be effected by the consent of the Company and only those Lenders that agree to participate in any relevant Subsidiary Borrower shall pay such tranche, provided that the aggregate amount of the commitments do not exceed the Dollar Equivalent of $5,500,000,000 at any time. Notwithstanding anything to the relevant Lenders the amountscontrary herein, if any, payable under no Lender shall be required to increase its Commitment pursuant to this Section 2.22 as a result of such prepayment2.14.
Appears in 2 contracts
Samples: Revolving Credit Agreement (American Tower Corp /Ma/), Revolving Credit Agreement (American Tower Corp /Ma/)
Incremental Commitments. (a) The Company may from time Pursuant to time notify the Administrative Agent that certain Section 2.15 of the Lenders designated Credit Agreement and subject to the terms and conditions set forth herein, each Lender severally agrees to make an Incremental Term Loan to the Borrower on the Effective Date in the amount set forth opposite its name on Exhibit A hereto under the heading “Incremental Term Commitment” (such loans being the “Third Amendment Incremental Term Loans”).
(b) Subject to Section 3(e) below, the procedure for making such Third Amendment Incremental Term Loans shall be as set forth in Section 2.02 of the Credit Agreement, the terms of which section are incorporated herein mutatis mutandis.
(c) The Third Amendment Incremental Term Loans made pursuant to this Section 3 shall be treated as an increase in the existing Class of Term A Loans and the terms and provisions of such Third Amendment Incremental Term Loans shall be identical to those of the Term A Loans; provided that, pursuant to Section 2.15(g)(iii) of the Credit Agreement, the amortization of the Third Amendment Incremental Term Loans shall be as set forth in Section 2.07(e) of the Credit Agreement (and not as set forth in Section 2.07(a) of the Existing Credit Agreement).
(d) The Third Amendment Incremental Term Loans made pursuant to Section 3(a)(i) hereof shall constitute a “Term Loan” for all purposes of the Credit Agreement from and after the Third Amendment Effective Date and rank pari passu in all respects with all other Term Loans, regardless of when made.
(e) No amount of any Third Amendment Incremental Term Loans made pursuant to Section 3(a) hereof that is repaid or prepaid by the Company and/or that additional lenders shall Borrowers may be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility reborrowed.
(a “Commitment Increase”f) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for For the avoidance of doubt, the Third Amendment Incremental CommitmentsTerm Loans made pursuant to Section 3(a)(i) hereof shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of reduce the Incremental Commitment availability set forth in Section 2.15(a) of such Incremental Lender specified in such Incremental Loan Activation Notice, subject the Credit Agreement (as amended pursuant to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation NoticeAmendment).
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment.
Appears in 2 contracts
Samples: Credit Agreement (Ichor Holdings, Ltd.), Credit Agreement (Ichor Holdings, Ltd.)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders and each Swingline Lender (which approval shall not be unreasonably withheld or delayed) unless such Incremental Lender is a Lender, and (ii) each Incremental Commitment shall be added to this Agreement on the same terms as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under and in all respects shall become a part of the Facility Commitments hereunder on such terms; provided, that, the Applicable Margin and Commitment Fee Rate applicable to the then-existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Commitments, which shall not exceed the Incremental Amount, and (iii) the date on which such Incremental Commitments are requested to become effective (the “Commitment IncreaseIncreased Amount Date”).
(b) by executing The Borrower and delivering each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such Lenders or such additional lenders deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and specifying furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.17 unless (i) on the respective Incremental Commitments date of such Incremental Lenders effectiveness, the conditions set forth in paragraphs (c) and (d) of Section 4.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, and (ii) the applicable Commitment Increase Date; providedAdministrative Agent shall have received legal opinions, that after giving effect board resolutions and other closing certificates and documentation to such Commitment Increase (including the incurrence of any Incremental Loans extent reasonably required by the Administrative Agent, in each case consistent with those delivered on the applicable Commitment Increase Closing Date under Section 4.1 and use of proceeds thereof) (x) no Default or Event of Default shall be continuing such additional documents and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds filings as the Administrative Agent shall determine may reasonably require to assure that the Revolving Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in order to causerespect of Incremental Commitments, after giving effect to such increased Commitments and the application when originally made, are included in each Borrowing of such amounts to prepay outstanding Revolving Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as on a result of such prepaymentpro rata basis.
Appears in 2 contracts
Samples: Credit Agreement (Investment Technology Group, Inc.), Credit Agreement (Investment Technology Group, Inc.)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Loans in their own discretion; provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent that certain and each L/C Issuer (neither of which approvals shall be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated by the Company and/or that additional lenders Incremental Revolving Facility Commitments being requested (which shall be added in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to this Agreement as the remaining Incremental Lenders with Amount), (ii) the date on which such Incremental Revolving Facility Commitments for are requested to become effective (the purpose “Increased Amount Date”), and (iii) whether such Incremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans up to an aggregate principal amount of increasing the existing Commitments $10,000,000 under the Facility (a “Commitment Increasefirst-in, last-out” tranche on customary terms (referred to herein as “FILO Revolving Loans”).
(b) by executing The Borrower and delivering each Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed by Assumption Agreement and such Lenders or other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Revolving Facility Commitments; provided that (i) all Incremental Facility Loans that are additional Revolving Facility Loans shall have the respective Incremental Commitments of such Incremental Lenders and same terms as the Revolving Facility Loans, (ii) the applicable Commitment Increase FILO Revolving Loans shall rank junior in right of payment but pari passu in right of security with the Revolving Facility Loans and, except as to pricing and final maturity date, shall have (x) the same terms as the Revolving Loans, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent; provided that the interest rate margins then in effect for outstanding Revolving Facility Loans shall not be increased to equal the interest rate margins for FILO Revolving Loans, (iii) the final maturity date of any FILO Revolving Loans shall be no earlier than the Revolving Facility Maturity Date; provided, that after giving effect and (iv) the weighted average life to such Commitment Increase (including maturity of any FILO Revolving Loans shall be no shorter than the incurrence remaining weighted average life to maturity of the Revolving Facility Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loans Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Company’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.15, including the establishment of any “FILO Revolving Loan” commitments as a “first-in, last-out” tranche on customary terms.
(c) Notwithstanding the foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 5.01 shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Revolving Facility Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Commitment Increase Date and use of proceeds thereofIncremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Revolving Facility Loans, (xiii) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (yiv) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms before and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the any Incremental Revolving Facility of other relevant LendersCommitment (including any FILO Revolving Loan), the Loans under the aggregate par principal amount of Revolving Facility to be Commitments directly held ratably by all Affiliated Lenders with shall not, collectively, exceed 10.0% of the aggregate par principal amount of all Revolving Facility Commitments (including any FILO Revolving Loans).
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Revolving Facility Loans (other than FILO Revolving Loans) in the form of additional Revolving Facility Loans, when originally made, are included in accordance with such Commitments after giving each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 3.05 shall apply to any conversion of Eurodollar Rate Loans to Base Rate Loans reasonably required by the Administrative Agent to effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 2 contracts
Samples: Abl Credit Agreement (Constellium Holdco B.V.), Abl Credit Agreement (Constellium Holdco B.V.)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated Borrower may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent on up to two (2) occasions during the period from the Closing Date to the eighteen (18) month anniversary of the Closing Date, request incremental Term Commitments and/or incremental Revolving Commitments, as applicable, in an Incremental Loan Activation Notice signed by amount not to exceed the aggregate amount of $130,000,000 from one or more additional Term Lenders and/or additional Revolving Lenders (which may include any existing Lender) willing to provide such Lenders incremental Term Loans and/or incremental Revolving Commitments, as the case may be, in their own discretion; provided, that each incremental Revolving Lender and incremental Term Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless, in the case of any incremental Lender, such incremental Lender is a Lender, an Affiliate of a Lender or such additional lenders and specifying an Approved Fund. Such notice shall set forth (i) the respective amount of the incremental Term Commitments and/or incremental Revolving Commitments being requested, (ii) the aggregate amount of all incremental Term Commitments and incremental Revolving Commitments, when taken together with all other incremental Commitments, shall not exceed $130,000,000 in the aggregate (the “Incremental Limit”), and (iii) the date on which such incremental Term Commitments and/or incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”). The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders willing to hold the requested incremental Term Commitments and/or incremental Revolving Commitments.
(b) The Borrower and each incremental Term Lender and/or incremental Revolving Lender shall execute and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence the incremental Term Commitment of such Incremental Lenders incremental Term Lender and/or incremental Revolving Commitment of such incremental Revolving Lender. Each such documentation shall specify the terms of the applicable incremental Term Loans and/or incremental Revolving Commitments; provided, that (i) the incremental Term Loans shall rank pari passu in right of payment and of security with the Term Loans and shall have the same terms as the Term Loans (including as to pricing, maturity and amortization) and (ii) from and after the applicable effectiveness of each amendment or other documentation, the associated incremental Revolving Commitments shall thereafter be Revolving Commitments with the same terms as the Revolving Commitments (including as to pricing and maturity). Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Term Commitments and/or incremental Revolving Commitments evidenced thereby (including adjusting the Revolving Percentages and/or the Term Percentages), and new Notes shall be issued and the Borrower shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Revolving Commitments and/or Term Commitments. The fees payable by the Borrower upon any such incremental Revolving Commitments and/or Term Commitments shall be agreed upon by the Administrative Agent, the Lenders with incremental Revolving Commitments and/or Term Commitments and the Borrower at the time of such increase. Notwithstanding the forgoing, nothing in this Section 2.23 shall constitute or be deemed to constitute an agreement by any Lender to increase its Commitments hereunder.
(c) Notwithstanding the foregoing, no incremental Term Commitment Increase Date; providedor incremental Revolving Commitment shall become effective under this Section 2.23 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.1 after giving effect to such incremental Term Commitment Increase (including and/or incremental Revolving Commitments, the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall to be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay ensure that (i) all incremental Term Loans under the Facility of (other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments than Term Loans) in the Facility form of additional Term Loans, when originally made, are included in accordance with such Commitments after giving effect to such increaseeach Borrowing of outstanding Term Loans on a pro rata basis, and (ii) all Revolving Loans in respect of incremental Revolving Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.20 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Company and any relevant Subsidiary Borrower shall be deemed Lenders to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) effect the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc), Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time notify such Incremental Commitments are established from one or more Incremental Term Lenders or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans or Incremental Revolving Facility Commitments, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $1,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent that certain Agent), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with terms identical to Term B Loans or commitments to make term loans with pricing terms, amortization, participation in mandatory prepayments or commitment reductions, maturity or other terms different from the Lenders designated by Term B Loans (“Other Term Loans”), and (iv) in the Company and/or that additional lenders case of Incremental Revolving Facility Commitments, the terms of such the terms of such Revolving Loans, including pricing terms, participation in mandatory prepayments or commitment reductions and maturity.
(b) The Borrower and each Incremental Term Lender or Incremental Revolving Facility Lender shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing execute and delivering deliver to the Administrative Agent an Incremental Assumption Agreement, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Activation Notice signed by Commitment of such Lenders Incremental Term Lender or Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans or Incremental Revolving Facility Commitments; provided, that
(i) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the respective Borrower and the Incremental Commitments Term Lenders in their sole discretion), the Other Term Loans shall have (x) the same terms as the Term B Loans, as applicable, or (y) market terms (as determined in good faith by the Borrower) and as set forth in a certificate of such Incremental Lenders and a Financial Officer of the Borrower,
(ii) the applicable Commitment Increase Date; Other Term Loans shall be secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Term B Loans or, at the option of the Borrower, be secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Term B Loans (provided, that after giving effect to if such Commitment Increase (including the incurrence of any Incremental Other Term Loans are secured by Liens on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default Collateral that rank junior to the Liens on the Collateral securing the Term B Loans, such Other Term Loans shall be continuing and (y) the sum of the Total Commitments then in effect (includingsubject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.be subject to clause (viii) below),
(biii) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, the final maturity date of any Other Term Loans shall be no earlier than the latest Term B Facility Maturity Date in effect on the terms date of incurrence,
(iv) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans,
(v) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and conditions ranking as to security (which shall, subject to clause (vi) and (vii) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion and which, for the avoidance of doubt, may include a single financial covenant which would be customary in the market for financings of such type (as determined by the Borrower in good faith)), the Revolving Loans shall have (x) substantially the same terms as the Term B Loans (other than the addition of a Financial Performance Covenant) or (y) market terms (as determined in good faith by the Borrower) and as set forth in a certificate of a Financial Officer of the Borrower,
(vi) the Revolving Loans shall be secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Term B Loans and other Revolving Loans or, at the option of the Borrower, secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Term B Loans and other Revolving Loans (provided, that if such Revolving Loans are secured by Liens on the Collateral that rank junior to the Liens securing the Term B Loans and/or other Revolving Loans, such Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vii) the final maturity date of any Revolving Loans shall be no earlier than the Term B Facility Maturity Date as of the date of the applicable Incremental Revolving Facility Assumption Agreement, and
(viii) with respect to make revolving credit loans any Other Term Loan that ranks pari passu in right of security with the Initial Term B Loans, (eachx) if the proceeds of such Other Term Loan are used to finance the acquisition of the Option Properties, an “Incremental Loan”the All-in Yield may exceed the All-in Yield in respect of the Initial Term B Loans, so long as:
(A) on the date of incurrence of such Other Term Loans, the Senior Secured Leverage Ratio on a Pro Forma Basis does not exceed 5.41 to 1.00; or
(B) in the event that on the date of incurrence of such Other Term Loans, the Senior Secured Leverage Ratio on a Pro Forma Basis exceeds 5.41 to 1.00, then:
(1) if the Other Term Loans are incurred by a Loan Party prior to the Company and/or first anniversary of the applicable Subsidiary Borrowers from time Closing Date, the All-in Yield of the Initial Term B Loans shall be increased by an amount equal to time the lesser of (A) 1.50% and (B) the difference between (i) the All-in Yield of such Other Term Loans and (ii) the All-in Yield of the Initial Term B Loans;
(2) if the Other Term Loans are incurred by a Loan Party on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount first anniversary of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject Closing Date but prior to the terms second anniversary of this Agreement and the applicable Incremental Loan Activation Notice. Nothing Closing Date, the All-in this Section 2.27 Yield of the Initial Term B Loans shall be construed increased by an amount equal to obligate any Lender to execute an Incremental Loan Activation Notice.
the lesser of (cA) On any Commitment Increase Date, in 1.25% and (B) the event any Loans under the Facility are then outstanding, difference between (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts All-in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application Yield of such amounts to prepay Other Term Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, and (ii) the Company and any relevant Subsidiary Borrower All-in Yield of Initial Term B Loans;
(3) if the Other Term Loans are incurred by a Loan Party on or after the second anniversary of the Effective Date but prior to third anniversary of the Closing Date, the All-in Yield of the Initial Term B Loans shall be deemed increased by an amount equal to have prepaid and reborrowed all outstanding Loans under this Agreement the lesser of (A) 0.75% and (iiiB) the Company difference between (i) All-in Yield of such Other Term Loans and any relevant Subsidiary Borrower (ii) the All-in Yield of Initial Term B Loans; and
(4) if the Other Term Loans are incurred by a Loan Party on or after the third anniversary of the Effective Date but prior to fourth anniversary of the Closing Date, the All-in Yield of the Initial Term B Loans shall pay be increased by an amount equal to the relevant Lenders lesser of (A) 0.25% and (B) the amounts, if any, payable under Section 2.22 as a result difference between (i) All-in Yield of such prepayment.Other Term Loans and (ii) the All-in Yield of Initial Term B Loans: or
(C) the Other Term Loans are incurred after the fourth anniversary of the Closing Date; or
Appears in 2 contracts
Samples: First Lien Credit Agreement (Vici Properties Inc.), First Lien Credit Agreement (Vici Properties Inc.)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender and Incremental Term Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld) unless, in the case of any Incremental Term Lender, such Incremental Term Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated by Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested, (ii) the Company aggregate amount of all Incremental Term Loan Commitments and Incremental Revolving Facility Commitments, when taken together with all other Incremental Commitments, shall not exceed $650.0 million in the aggregate (the “Incremental Limit”), (iii) the date on which such Incremental Term Loan Commitments and/or that additional lenders shall be added Incremental Revolving Facility Commitments are requested to this Agreement as Incremental Lenders with Commitments for become effective (the purpose of increasing the existing Commitments under the Facility (a “Commitment IncreaseIncreased Amount Date”) by executing and delivering (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Activation Notice signed by Commitment of such Lenders or Incremental Term Lender and/or Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the respective Incremental Commitments Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans, as applicable, or (y) such Incremental Lenders and other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans and (iv) from and after the effectiveness of the each Incremental Assumption Agreement, the associated Incremental Revolving Facility Commitments shall thereafter be Revolving Facility Commitments. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Commitment Increase Date; providedIncremental Term Lenders in the applicable Incremental Assumption Agreement, that junior to) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment Increase (including and/or Incremental Revolving Facility Commitments, the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall to be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay ensure that (i) all Incremental Term Loans under the Facility of (other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments than Other Term Loans) in the Facility form of additional Term B Loans, when originally made, are included in accordance with such Commitments after giving effect to such increaseeach Borrowing of outstanding Term B Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Company and any relevant Subsidiary Borrower shall be deemed Lenders to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) effect the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 1 contract
Samples: Credit Agreement (NRT Settlement Services of Missouri LLC)
Incremental Commitments. (a) The Company may may, by written notice to the Agent from time to time notify but not more than twice in any calendar year, request Incremental Commitments in an amount not to exceed the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Amount from one or more Incremental Lenders with Commitments for the purpose of increasing the (which may include any existing Commitments under the Facility (a “Commitment Increase”Lender) by executing and delivering willing to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of provide such Incremental Lenders and (ii) the applicable Commitment Increase DateAdvances in their sole discretion; provided, that after giving effect to such Commitment Increase each Incremental Lender (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereofwhich is not an existing Lender) (x) no Default or Event of Default shall be continuing subject to the approval requirements of Section 9.07. Such notice shall set forth (A) the amount of the Incremental Commitments being requested (which shall be in multiples of US$10,000,000), (B) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”) and (yC) the sum of the Total whether such Incremental Commitments then in effect (includingare to be Tranche A Commitments, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, Tranche B Commitments or commitments to make revolving credit loans advances with currency, borrowers and/or amortization terms different from the existing Facilities (“Other Revolving Credit Advances”). The designation of Commitments to any Other Revolving Credit Advances shall be made pursuant to an amendment (each, an “Incremental LoanFacility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Company, the Agent and each applicable Incremental Lender. No Lender shall be obligated to increase its Commitments pursuant to this Section 2.19 unless it so agrees.
(b) The Company and/or and each Incremental Lender shall execute and deliver to the applicable Subsidiary Borrowers from time Agent an agreement in form and substance reasonably satisfactory to time on or after the Commitment Increase Date specified in such Agent (each, an “Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up Assumption Agreement”) to but not exceeding the amount of evidence the Incremental Commitment of such Incremental Lender specified in such Lender. Each Incremental Loan Activation Notice, subject to Assumption Agreement shall specify the terms of this Agreement the Incremental Advances to be made thereunder, and the Incremental Advances thereunder shall be made on terms and conditions agreed to by the Company and the applicable Incremental Loan Activation Notice. Nothing Lenders, and acceptable to the Agent; provided, that (i) the Other Revolving Facility Advances shall rank pari passu in this Section 2.27 right of payment with all other Advances, (ii) the final maturity date of any Incremental Facility shall be construed no earlier than the scheduled Termination Date applicable to obligate the Tranche A Facility and the Tranche B Facility (under clause (a)(i) of the definition of “Termination Date”), (iii) the Incremental Facility shall require no scheduled amortization or mandatory commitment reductions prior to the scheduled Termination Date applicable to the Tranche A Facility and the Tranche B Facility (under clause (a)(i) of the definition of “Termination Date”), (iv) in the event that (A) (1) any Lender Incremental Facility is to execute be included in an existing Facility and (2) the Applicable Margin for such Incremental Facility is greater than the Applicable Margin for the existing Facility in which such Incremental Facility is to be included, then the Applicable Margin for the existing Facility in which such Incremental Facility is to be included shall be increased to the extent necessary so that the Applicable Margin for the Incremental Facility is not greater than the Applicable Margin for such Facility or (B)(1) any Incremental Facility provides for Advances to be denominated in US Dollars, Euro or Sterling and (2) the Applicable Margin for such Incremental Facility with respect to Advances denominated in US Dollars, Euro or Sterling is greater than the Applicable Margin for any existing Facility with respect to Advances denominated in US Dollars, Euro or Sterling, then the Applicable Margin for each existing Facility with respect to Advances denominated in US Dollars, Euro or Sterling shall be increased to the extent necessary so that the Applicable Margin for such Incremental Facility for Advances denominated in US Dollars, Euro or Sterling is not greater than the Applicable Margin for any such existing Facility for Advances denominated in US Dollars, Euro or Sterling; provided further, that in determining the Applicable Margin applicable to an Incremental Loan Activation NoticeFacility (x) upfront, arrangement or commitment fees payable to the Lenders providing such Incremental Facility or any arrangers (or their Affiliates) of such loans shall be excluded and (y) if any Eurocurrency Rate “floor” is applicable to such Incremental Facility, then the definition of “Eurocurrency Rate” shall be amended to (aa) include a comparable “floor” applicable to Advances under the existing Facility in which such Incremental Facility is to be included and (bb) include a comparable “floor” applicable to Advances denominated in US Dollars, Euro or Sterling under any other existing Facility. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(c) On any Notwithstanding the foregoing, no Incremental Commitment Increase Date, in the event any Loans shall become effective under the Facility are then outstanding, this Section 2.20 unless (i) each relevant Incremental Lender shall make available to on the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application date of such amounts to prepay Loans under effectiveness (unless otherwise agreed among the Facility of other relevant Incremental Lenders, the Loans under Company and the Facility applicable Borrowers, and consented to by the Agent (such consent not to be held ratably unreasonably withheld or delayed)) (A) the representations and warranties set forth in Article IV are correct in all material respects (except those representations and warranties qualified by materiality, which shall be true and correct) on and as of such date, as though made on and as of such date, except to the extent that any such representation or warranty expressly relates only to an earlier date, in which case it was correct in all Lenders with Commitments in material respects (except those representations and warranties qualified by materiality, which shall be true and correct) as of such earlier date and the Facility in accordance with Agent (acting at the direction of the applicable Incremental Lenders) shall have received a certificate to that effect dated such Commitments after giving effect to date and executed by the Company and (B) no Event of Default or Potential Event of Default shall have occurred and be continuing or would result from such increaseIncremental Commitment, (ii) the Company Agent shall have received such legal opinions, board resolutions and any relevant Subsidiary Borrower other closing certificates and documentation (including opinions of counsel) as the Agent (acting at the direction of the applicable Incremental Lenders) shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement reasonably request and (iii) the Company and any relevant Subsidiary Borrower shall pay Incremental Commitment of each Incremental Lender that was not, prior to the relevant Lenders applicable Increased Amount Date, a Lender hereunder shall not be less than US$5,000,000.
(d) Each of the amountsparties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Advances (other than Other 49 Revolving Credit Advances), if anywhen originally made, payable are included in each Borrowing of outstanding Advances under the Tranche A Facility or the Tranche B Facility, as applicable, on a pro rata basis.
(e) Notwithstanding the terms of Section 2.22 9.01, any Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Company, to implement the provisions of this Section, a result copy of such prepaymentwhich shall be made available to each Lender.
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrower Representative may, on behalf of any Borrower, at any time or from time to time notify after the Closing Date, by notice to Administrative Agent that certain (an “Incremental Loan Request”), request (i) one or more new commitments which may be of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement same Class as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (ii) one or more increases in the amount of the Revolving Commitments (a “Revolving Commitment Increase”) by executing and delivering to or a new Class of Revolving Commitments (collectively with any Revolving Commitment Increase, the Administrative Agent an “Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; providedRevolving Credit Commitments”, that after giving effect to such Commitment Increase (including the incurrence of and, collectively with any Incremental Loans on Term Commitments, the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, “Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees”), on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at not to exceed the sum of (A) the greater of (1) $178,800,000 and (2) 100% of Consolidated Adjusted EBITDA for the most recently completed Test Period (calculated on a Pro Forma Basis) minus any time up to but amounts previously utilized in reliance on this Fixed Incremental Amount (and not exceeding redesignated) and the amount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the “Fixed Incremental Commitment of such Amount”) plus (B) an unlimited amount (the “Incremental Lender specified in such Incremental Loan Activation NoticeIncurrence-Based Amount”), subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds so long as the Administrative Agent shall determine are necessary in order to cause, on a Pro Forma Basis after giving effect to the incurrence of any such increased Commitments and Incremental Loans (assuming the application full amount of any such amounts to prepay Indebtedness in the form of a revolving credit facility is drawn) (without netting the cash proceeds of any borrowing under any such Incremental Term Loans under or Incremental Revolving Credit Commitment not promptly applied for the Facility of other relevant Lendersspecified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the Loans under Total Net Leverage Ratio does not exceed 4.50:1.00 as of the Facility to be held ratably by all Lenders with Commitments in last day of the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment.most recently completed Test
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) The Company Borrowers and any one or more Lenders (including New Lenders) may from time to time notify prior to the Administrative Agent Initial Revolving Termination Date agree that certain such Lenders shall make, obtain or increase the amount of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with their Revolving Commitments for the purpose of increasing the existing Commitments under the Facility (each, a “Commitment Increase”) by executing and delivering to the Administrative Agent Agents an Incremental Loan Increased Facility Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments amount of such Incremental Lenders increase and (ii) the applicable Commitment Increase Increased Facility Closing Date; provided, provided that immediately prior to and after giving effect to any such Commitment Increase increase in the Revolving Commitments (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (xi) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New DocID \\DC - 036150/000014 - 15261895 v6 Lender”) shall become a 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.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the sum of the Total Commitments then in effect existing Lenders (includingincluding existing Lenders providing a Commitment Increase, for the avoidance of doubt, Incremental Commitmentsif applicable) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 New Lenders shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Datemake and receive payments among themselves, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available a manner acceptable to the Administrative Agent Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such amounts existing Lenders and New Lenders in immediately available funds as accordance with the Administrative Agent shall determine are necessary in order to cause, respective Revolving Commitments of such Lenders (after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (iiCommitment Increase) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iiiC) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. 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 this clause (c).
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Loan Commitments in an amount not to exceed in the aggregate the Incremental Amount from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loan Commitments in their own discretion; provided, that each Incremental Term Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld) unless such Incremental Term Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated by Incremental Term Loan Commitments being requested and (ii) the Company and/or that additional lenders date on which such Incremental Term Loan Commitments are requested to become effective.
(b) The Borrower and each Incremental Term Lender shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing execute and delivering deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Activation Notice signed Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify that from and after the effectiveness of the Incremental Assumption Agreement and the funding thereunder, the associated Incremental Term Loans shall thereafter be Term A Loans or Term A-1 Loans, as the case may be.. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary, which includes amending Section 2.10, to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by such Lenders or such additional lenders the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and specifying furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the respective Incremental Commitments date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided that in the event that the Incremental Term Loan Commitments are used to finance a Permitted Business Acquisition, the condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be limited to customary “specified representations” and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, and the condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall be made by the Borrower at the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition, (ii) the applicable Commitment Increase Date; providedAdministrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with the existing Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Commitment Increase (including Incremental Term Loan Commitment, the incurrence of any Incremental Loans on to be made thereunder and the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum application of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billionproceeds therefrom as if made and applied on such date.
(bd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Lender that is a signatory Term Loans are in the form of additional Term A Loans or Term A-1 Loans, as applicable, when originally made, and are included in each Borrowing and repayment (including pursuant to an Incremental Loan Activation Notice severally agreesSection 2.10(a)(i)) of outstanding Term A Loans or Term A-1 Loans, as applicable, on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the terms and conditions Lenders to effect the foregoing.
(e) Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (j) of this AgreementSection 2.20)) or any other Loan Document, pursuant to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers one or more offers made from time to time by the Borrower to all Lenders on or after a pro rata basis (“Extension Offers”), the Commitment Increase Date specified Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up Extension Offers to but not exceeding extend the amount maturity date of each such Lender’s Term A Loans to each such Lender and to otherwise modify the terms of such Lender’s Term A Loans pursuant to the terms of the relevant Extension Offer (including increasing the interest rate or fees and/or modifying the amortization schedule in respect thereof). Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Commitment Term Loan for such Lender (if such Lender is extending an existing Term A Loan) (such extended Term A Loan, an “Extended Term Loan”).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans of such Extending Lender. Each Incremental Lender specified Assumption Agreement shall specify the terms of the applicable Extended Term Loans; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in such Incremental Loan Activation Noticeprepayments (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term A Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be later than the Term A Facility Maturity Date, (iii) the weighted average life to maturity of any Extended Term Loans shall be longer than the remaining weighted average life to maturity of the Term A Loans, and (iv) other than as set forth in Section 2.11(g), any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term A Loan (or applicable portion thereof) will be automatically designated an Extended Term Loan. For purposes of this Agreement and the applicable Incremental other Loan Activation Notice. Nothing in this Section 2.27 shall Documents, if such Extending Lender is extending a Term A Loan (or portion thereof), such Extending Lender will be construed deemed to obligate any Lender to execute have an Incremental Term Loan Activation Noticehaving the terms of such Extended Term Loan.
(ch) On [Reserved].
(i) Notwithstanding anything to the contrary set forth in this Agreement or any Commitment Increase Date, in the event any Loans under the Facility are then outstandingother Loan Document (including this Section 2.20), (i) each relevant the aggregate amount of Extended Term Loans, will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan is required to be in any minimum amount or any minimum increment, (iii) except as set forth in the applicable Extension Offer, any Extending Lender may extend all or any portion of its Term A Loans pursuant to one or more Extension Offers (subject to applicable proration in the case of overparticipation) (including one or more extensions of any Extended Term Loan), (iv) there shall make available be no condition precedent to any Extension of any Term A Loan at any time or from time to time other than (A) delivery of notice to the Administrative Agent of such amounts Extension and the terms of the Extended Term Loans implemented thereby and (B) a representation by the Borrower in immediately available funds the applicable Incremental Assumption Agreement that the representations and warranties set forth in the Loan Documents are true and correct in all material respects as of the Administrative effective date of such Extension, with the same effect as though made on and as of such date, except to the extent any such representation or warranty expressly relates to an earlier date (in which case such representation or warranty was true and correct in all material respects as of such earlier date), (v) no consent of any Lender or Agent shall determine are necessary in order be required to causeeffectuate any Extension, after giving effect other than the consent of each Lender agreeing to such increased Extension with respect to one or more of its Loans and/or Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase(or a portion thereof), (iivi) the Company all Extended Term Loans and any relevant Subsidiary Borrower all obligations in respect thereof shall be deemed to have prepaid and reborrowed all outstanding Loans Obligations under this Agreement and the other Loan Documents that are secured on a pari passu basis with the Term A Loans and (iiivii) the Company and no Lender shall be required to consent to any relevant Subsidiary Borrower extension of any Loan and/or Commitment (or any portion thereof), which consent shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentbe in each Lender’s sole discretion.
Appears in 1 contract
Incremental Commitments. (a) The Company may from time Pursuant to time notify the Administrative Agent that certain Section 2.07(f) of the Lenders designated by Credit Agreement and subject to the Company and/or that terms and conditions hereof, each Increasing Lender and each Assuming Lender hereby agrees to make its Incremental Commitment to the Borrower effective on and as of the Effective Date (as defined below). Each Incremental Commitment shall constitute an additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (“Commitment” and a “Commitment Increase”” for all purposes of the Credit Agreement and the other Loan Documents, and the Effective Date shall be the “Commitment Increase Date” of the Incremental Commitments for purposes of Section 2.07(f) of the Credit Agreement.
(b) The terms and provisions of any new Loans issued by executing the Increasing Lenders and delivering Assuming Lenders, and the Incremental Commitments of the Increasing Lenders and Assuming Lenders, shall be identical to the terms and provisions of Loans issued by, and the Commitments of, the Lenders immediately prior to the Effective Date.
(c) On the Effective Date, in connection with the adjustments, if any, to any outstanding Loans and participation interests contemplated by Section 2.07(f)(iv) of the Credit Agreement, each Increasing Lender and each Assuming Lender shall make a payment to the Administrative Agent, for the account of the other Lenders, in an amount calculated by the Administrative Agent an Incremental Loan Activation Notice signed by in accordance with such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; providedSection, so that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date payment and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or distribution thereof to the applicable Subsidiary Borrowers from time to time on or after other Lenders in accordance with such Section, the Commitment Increase Date specified Loans are held ratably by the Lenders in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding accordance with the amount of the Incremental Commitment respective Commitments of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
Lenders (c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased the Incremental Commitments and the application of such amounts to prepay Loans under the Facility of any other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amountsCommitment Increases, if any, payable under Section 2.22 as a result of such prepaymentoccurring on the Effective Date).
Appears in 1 contract
Samples: Incremental Commitment and Assumption Agreement (Capital Southwest Corp)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Administrative Agent Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender or any other person selected by the Borrower which becomes a Lender by signing an Incremental Assumption Agreement (it being understood that certain no existing Lender will be under any obligation to provide any Incremental Term Loan Commitment or Incremental Revolving Facility Commitment)) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Lenders designated by the Company Incremental Term Loan Commitments and/or that additional lenders Incremental Revolving Facility Commitments being requested (which shall be added in minimum increments of $10,000,000 and a minimum amount of $25,000,000 or equal to this Agreement as the remaining Incremental Lenders Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with Commitments for pricing and/or amortization terms different from the purpose of increasing the existing Commitments under the Revolving Facility Loans (a “Commitment IncreaseOther Revolving Loans”);
(b) by executing The Borrower and delivering each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Activation Notice signed by Commitment of such Lenders or Incremental Term Lender and/or Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso and the respective proviso to clause (v) below), be determined by the Borrower and the Incremental Commitments of Term Lenders or Incremental Revolving Lenders in their sole discretion), the Incremental Term Loans shall have (x) substantially identical terms as the Revolving Facility or (y) such Incremental Lenders and other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence final maturity date of any Incremental Term Loans on shall be no earlier than the applicable Commitment Increase Date Revolving Facility Maturity Date, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Revolving Facility Loans, (iv) except as to pricing, amortization and use final maturity date (which shall, subject to clause (v) of proceeds thereof) this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) the same terms as the Revolving Facility or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent and (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date; provided further that the interest rate margin (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Revolving Loans or Incremental Term Loans in the initial primary syndication thereof) in respect of any Other Revolving Loans or Incremental Term Loans shall be the same as that applicable to the Revolving Facility Loans; except that the interest rate margin in respect of any Other Revolving Loans or Incremental Term Loans (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Revolving Loans or Incremental Term Loans in the initial primary syndication thereof) may exceed the Applicable Margin for the Revolving Facility Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Revolving Facility Loans or Incremental Term Loans in the initial primary syndication thereof), respectively, by no more than ¼ of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such Applicable Margin (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Revolving Facility Commitments in the initial primary syndication thereof), such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Revolving Loans or Incremental Term Loans, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Revolving Loans or Incremental Term Loans in the initial primary syndication thereof), is no more than ¼ of 1% higher than the Applicable Margin for the Revolving Facility Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Revolving Facility Commitments in the initial primary syndication thereof). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.22 unless (i) on the date of such effectiveness, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (yii) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 Borrower shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, Pro Forma Compliance after giving effect to such increased Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay ensure that all Revolving Facility Loans under in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Facility of other relevant Lenders, Administrative Agent to effect the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrower may, from time to time notify after the Administrative Agent that certain of the Lenders designated Closing Date, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying request the establishment of (i) one or more new term loan commitments (the respective Incremental Commitments of such Incremental Lenders and “New Term Loan Commitments”), (ii) one or more additional tranches of revolving credit commitments (the applicable “Additional Revolving Credit Commitments”) and/or (iii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments established following the FirstEighth Amendment Effective Date not in excess of the Incremental Facility Amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may seek Incremental Commitments from existing Lenders or from by any other bank, financial institution, other institutional lender or other Person that is an eligible assignee pursuant to Section 13.6(b) (any such other Person being called an “Additional Lender”); provided, that after giving effect the Administrative Agent (and, solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Commitment Increase (including the incurrence of Additional Lender’s providing any Incremental Commitments to the extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment.
(b) Such Incremental Commitment shall become effective as of such Increased Amount Date; provided that (1) the representations and warranties set forth herein and in the other Credit Documentation shall be true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Commitments (and the Loans made pursuant thereto) shall be secured on a pari passu basis with the Term B Loans, the Revolving Credit Commitments and the Revolving Credit Loans and shall be secured only by the Collateral securing the Obligations; (3) noneither the Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless suchthe Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the applicable Commitment Increase Date and use of proceeds thereof) Increased Amount Date); (x4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and to the making of any Loans pursuant thereto; provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the absence of a Default or Event of Default shall not constitute a condition to the making of such Incremental Commitments; (5) the Incremental Commitments and related Loans made pursuant thereto shall be continuing effected pursuant to one or more amendments (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Parent GuarantorsGuarantor, the Borrower, each Lender and each Additional Lender providing such New Term Loan Commitments, Additional Revolving Credit Commitments or Revolving Credit Commitment Increase, as applicable (each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d)), and the Administrative Agent; and (y6) the sum Borrower shall make any payments required pursuant to Section 2.12 in connection with the Incremental Commitments, as applicable. Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from Term Loans outstanding on the date on which such New Term Loans are made shall be designated as a separate Class of Term Loans for all purposes of this Agreement. Each of the Total parties hereto hereby agrees that each Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.17.
(c) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (i) the Maturity Date of any New Term Loans shall not be earlier than the then-existing Latest Maturity Date with respect to any Existing Class of Term Loans, (ii) any New Term Loans shall not have a shorter Weighted Average Life than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (iii) if the Initial Yield on any New Term Loans exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans and (iv) any New Term Loans shall otherwise have the same terms and conditions of the Term Loans then in effect or such other terms and conditions reasonably satisfactory to the Administrative Agent. On any Increased Amount Date on which any New Term Loan Commitments of any Class are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Class, and (ii) each New Term Loan Lender of any Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto.
(d) Notwithstanding the foregoing, without the prior written consent of the Required Lenders or the Required Revolving Credit Lenders, (A) any Revolving Credit Commitment Increase shall be on the exact same terms (including with respect to commitment reductions and interest rates) as the Revolving Credit Commitments, except for such differences (including with respect to maturity date) that are expressly permitted by the following subclause (B), and (B) (i) the Maturity Date of any Additional Revolving Credit Commitments shall not be earlier than, and shall not require mandatory commitment reduction (except ratably with the Revolving Credit Commitments) prior to, the then-existing Latest Maturity Date with respect to the latest maturing Existing Class of Revolving Credit Loans, (ii) if the Initial Yield on any Additional Revolving Credit Commitments (and related Revolving Credit Loans) that expire on or before the one-year anniversary of the Latest Maturity Date with respect to the latest maturing Existing Class (or Classes) of Revolving Credit Commitments (and, in each case, any related Revolving Credit Loans) (such expiration of Additional Revolving Credit Commitments determined without giving effect to contingencies that would cause such expiration to be earlier than otherwise stated unless and until such contingency occurs), exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) by more than 50 basis points, then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) shall automatically be increased by the Yield Differential, effective upon the effectiveness of such Additional Revolving Credit Commitments, (iii) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Revolving Credit Loans under any Additional Revolving Credit Commitments shall be made on a pro rata basis with any borrowings and repayments of the Revolving Credit Loans then in effect (the mechanics for which may be implemented through the applicable Incremental Amendment and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Loans then in effect) and (iv) any Additional Revolving Credit Commitments shall otherwise have the same terms and conditions of the Revolving Credit Commitments then in effect (or such other terms and conditions reasonably satisfactory to the Administrative Agent, including, for the avoidance of doubt, Incremental doubt any “MFN” protection applicable to such Additional Revolving Credit Commitments) shall not exceed $2 billion.
(be) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment parties hereto hereby agrees that the Administrative Agent may, with the consent of such Incremental Lender specified in such Incremental Loan Activation Noticethe Borrower (not to be unreasonably withheld), subject take any and all action as may be reasonably necessary to the terms of this Agreement and ensure that all New Term Loans that, pursuant to the applicable Incremental Amendment, are to be of the same Class of an Existing Class of Term Loans, when originally made, are included in each Borrowing of such Existing Class of Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Term Loans to be converted into a Borrowing of Term Loans that are ABR Loans on the date the applicable New Term Loan Activation Noticeis made, or by allocating a portion of each such New Term Loan to each outstanding Borrowing of LIBOR Term Loans on a pro rata basis. Nothing in this Section 2.27 Any conversion of Borrowing of LIBOR Term Loans to Term Loans that are ABR Loans required by the preceding sentence shall be construed subject to obligate Section 2.12. If any Lender New Term Loan is to execute be allocated to an Incremental Loan Activation Notice.
(c) On any Commitment Increase Dateexisting Interest Period for a Borrowing of LIBOR Term Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the event any Loans under the Facility are then outstandingapplicable Incremental Amendment. In addition, (i) each relevant Incremental Lender shall make available to the Administrative Agent extent any New Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.5(b) required to be made after the making of such amounts New Term Loans shall be ratably increased by the aggregate principal amount of such New Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation.
(f) Upon each Revolving Credit Commitment Increase pursuant to this Section, each Revolving Credit Lender immediately available funds as prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Administrative Agent shall determine are necessary Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in order respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to causehave assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such increased deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the application date of such amounts increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to prepay the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Facility of other relevant Lenders, the Revolving Credit Loans under the Facility to be held ratably being prepaid and any costs incurred by all Lenders with Commitments in the Facility any Lender in accordance with such Commitments after giving effect to such increaseSection 2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, (ii) the Company pro rata borrowing and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under pro rata payment requirements contained elsewhere in this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay not apply to the relevant Lenders transactions effected pursuant to the amounts, if any, payable under Section 2.22 as a result of such prepaymentimmediately preceding sentence.
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrower shall have the right to request at any time and from time to time notify that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders, subject to the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to terms set forth in this Agreement as Incremental Lenders with Section 2.15) provide an increase in Revolving Commitments for the purpose of increasing the existing Commitments under the Facility (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, make Loans pursuant thereto; it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by executing the Borrower;
(ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender;
(iii) each Incremental Facility shall be denominated in U.S. Dollars;
(iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Loans, Permitted Pari Passu Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date;
(vi) the proceeds of all Incremental Facilities incurred by the Borrower may be used for any purpose not prohibited under this Agreement;
(vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment;
(viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and delivering optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity (in each case of the foregoing clauses (a) and (b), excluding for this purpose (x) interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of incurrence); (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding Term B-4 Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Term B-4 Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent an and may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Loan Activation Notice signed by such Lenders or such additional Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders and specifying (i) the respective Incremental Commitments of providing such Incremental Lenders Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-4 Loans, such terms (iiif favorable to the existing Lenders) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) automatically incorporated into the sum Credit Documents for the benefit of the Total Commitments then in effect (all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans);
(ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the 2023 Revolving Loans and the 2023 Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be 2023 Revolving Loans, including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the 2023 Revolving Loans, (B) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Applicable Commitment Fee Rate applicable to the 2023 Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the 2023 Revolving Loans, (D) after giving effect to such Revolving Commitment Increases, Revolving Commitments shall be reduced based on each Lender’s Pro Rata Percentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the 2023 Revolving Loans;
(x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/ Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans;
(xi) any Tranche of Additional/Replacement Revolving Commitments shall not exceed $2 billionrequire any scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the 2023 Revolving Loans and 2023 Revolving Commitments and shall be on substantially the same terms as those applicable to the 2023 Revolving Loans and 2023 Revolving Commitments (other than as set forth herein or otherwise reasonably acceptable to the Administrative Agent);
(xii) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall, to the extent secured, be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty and shall be secured by only the Collateral securing the Obligations hereunder;
(xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Revolving Commitment Increases, Additional/Replacement Revolving Commitments and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) and such Loans shall thereafter be deemed to be Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents; and
(xiv) all Incremental Commitment Requirements are satisfied.
(b) Each At the time of the provision of Incremental Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender that is a signatory or other Eligible Transferee which agrees to provide an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans Commitment (each, an “Incremental LoanLender”) shall execute and deliver to the Company and/or Administrative Agent an Incremental Amendment (which shall not require the applicable Subsidiary Borrowers from time to time on or after consent of any other Lender), with the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Lender specified in such Incremental Loan Activation Notice, subject Amendment shall have been delivered to the terms Administrative Agent, (x) all fees required to be paid in connection therewith at the time of this Agreement such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and the applicable Incremental Loan Activation Notice. Nothing (z) all other conditions set forth in this Section 2.27 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be construed deemed modified to obligate reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Lender Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to execute an such Incremental Loan Activation NoticeLender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) On any Commitment Increase DateNotwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the event any following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same maturity date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately; and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.07, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the Facility are then outstanding, respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application incurrence of such amounts new Incremental Term Loans pursuant to prepay Loans under Section 2.01(c)) on a pro rata basis. To the Facility extent the provisions of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and preceding clause (iii) the Company and any relevant Subsidiary Borrower shall pay require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result then outstanding Borrowings of SOFR Loans of such prepaymentTranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by the Administrative Agent of the Adjusted Term SOFR in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Commitments. (a) The Company may from time to time notify Upon the Administrative Agent that certain satisfaction of the Lenders designated by following conditions (such date of satisfaction, the Company and/or that additional lenders “Incremental Facility Effective Date”), the total Revolving Facility Commitments shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) increased by executing and delivering an amount equal to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying Amount:
(i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall have occurred and be continuing and or shall result after giving effect to the Incremental Revolving Facility;
(yii) the sum Borrowers shall have paid to the Administrative Agent for the account of each Incremental Revolving Facility Lender (other than Defaulting Lenders) having Incremental Revolving Facility Commitments, ratably in accordance with each such Lender’s Incremental Revolving Facility Percentage, an accordion fee (the “Incremental Facility Exercise Fee”) equal to the product of (i) the total Incremental Revolving Facility Commitments multiplied by (ii) 0.125% per annum;
(iii) the termination of the Total Commitments then AB Receivables Financing and the payment in effect (includingfull or provision for payment in full of all obligations owing to the purchasers under the AB Receivables Financing, for in each case in a manner reasonably acceptable to the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.Administrative Agent;
(biv) Each the Administrative Agent shall maintain a senior perfected security interest in substantially all of the AB Receivables owned by Muscle Shoals; and
(v) the Administrative Agent shall have received a written notice signed by a Responsible Officer of each Borrower, notifying the Administrative Agent of the Borrowers’ election to exercise the Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms Revolving Facility and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) certifying as to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing matters set forth in this Section 2.27 shall be construed to obligate any Lender to execute an 2.15. On the Incremental Loan Activation Notice.
(c) On any Commitment Increase Facility Effective Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Revolving Facility Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increased Commitments increase and the application use of such amounts to prepay Loans under the Facility of make payments to such other relevant Lenders, each Lender’s portion of the outstanding Revolving Facility Loans under of all the Lenders to equal its Pro Rata Share of such outstanding Revolving Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increaseLoans, and (ii) the Company and any relevant Subsidiary Borrower Borrowers shall be deemed to have prepaid repaid and reborrowed all outstanding Revolving Facility Loans under this Agreement and as of the Incremental Facility Effective Date (iiiwith such reborrowing to consist of the Types of Revolving Facility Loans, with related Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, in accordance with the requirements of Section 2.03). The deemed payments made pursuant to clause (ii) of the Company and any relevant Subsidiary immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurodollar Rate Loan, shall be subject to indemnification by the applicable Borrower shall pay pursuant to the relevant Lenders provisions of Section 3.05 if the amountsdeemed payment occurs other than on the last day of the related Interest Periods. Notwithstanding any provision herein or in any other Loan Document to the contrary, if anyno Revolving Facility Loans, payable under Section 2.22 other Credit Events or any other financial accommodations advanced in excess of the total Revolving Facility Commitments as in effect immediately prior to the Incremental Facility Effective Date shall be secured by any Real Property unless and until the flood diligence required by Sections 6.02 and 10.01 has been completed in a result of manner satisfactory to each Lender, as confirmed by written notice from each such prepaymentLender to the Administrative Agent and the Borrowers after the Incremental Facility Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Constellium N.V.)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated Borrower may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent on up to two (2) occasions during the period from the Closing Date to the twenty-four (24) month anniversary of the Closing Date, request incremental Commitments in an Incremental Loan Activation Notice signed by amount not to exceed the aggregate amount of $225,000,000 from one or more additional Lenders (which may include any existing Lender) willing to provide such Lenders incremental Commitments in their own discretion; provided, that each incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such incremental Lender is a Lender, an Affiliate of a Lender or such additional lenders and specifying an Approved Fund. Such notice shall set forth (i) the respective Incremental amount of the incremental Commitments of such Incremental Lenders and being requested, (ii) the aggregate amount of all incremental Commitments, which when taken together with all other incremental Commitments, shall not exceed $225,000,000 in the aggregate (the “Incremental Limit”), and (iii) the date on which such incremental Commitments are requested to become effective (the “Increased Amount Date”). The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders willing to hold the requested incremental Commitments.
(b) The Borrower and each incremental Lender shall execute and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence the incremental Commitment of such incremental Lender. Each such documentation shall specify the terms of the applicable Commitment Increase Dateincremental Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Commitments shall thereafter be Commitments with the same terms as the Commitments (including as to pricing and maturity). Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments evidenced thereby (including adjusting the Applicable Percentages), and new Notes shall be issued and the Borrower shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by the Borrower upon any such incremental Commitments shall be agreed upon by the Administrative Agent, the Lenders with incremental Commitments and the Borrower at the time of such increase. Notwithstanding the forgoing, nothing in this Section 2.4 shall constitute or be deemed to constitute an agreement by any Lender to increase its Commitments hereunder.
(c) Notwithstanding the foregoing, no incremental Commitment shall become effective under this Section 2.4 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrower shall be in pro forma compliance with the covenants set forth in Section 6.13 after giving effect to such Commitment Increase (including incremental Commitments, the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall to be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay ensure that all Loans under the Facility in respect of other relevant Lendersincremental Commitments, the Loans under the Facility to be held ratably by all Lenders with Commitments when originally made, are included in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all each Borrowing of outstanding Loans under this Agreement and (iii) on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Company and any relevant Subsidiary Borrower shall pay Lenders to effect the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 1 contract
Samples: Credit Agreement (Healthcare Trust of America, Inc.)
Incremental Commitments. (a) The Company Borrower may on one or more occasions, by written notice to the Administrative Agent, request, after the Closing Date and prior to the Maturity Date, the establishment of Incremental Commitments; provided that the aggregate, cumulative amount of all Incremental Commitments established pursuant to this Section 2.18 shall not exceed US$500,000,000. Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than five Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (ii) the amount of the Incremental Commitments being requested and (iii) the identity of each Lender or other Person that the Borrower proposes become an Incremental Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment for each such Lender or other Person (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any such Person that is not a Lender must be an Eligible Assignee that is reasonably acceptable to the Administrative Agent).
(b) The terms and conditions of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to the terms and conditions of the Commitments and Loans and other extensions of credit made thereunder.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by only the Borrower, each Incremental Lender providing such Incremental Commitments, and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom or from the issuance of such Letter of Credit that constitutes a Default or Event of Default, (ii) on the date of effectiveness thereof, the representations and warranties of the Borrower set forth in Section 4.01 shall be true and correct in all material respects as though made on and as of such date, (iii) after giving effect to and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in compliance with the covenant set forth in Section 5.03, (iv) the Borrower shall make any payments required to be made in connection with such Incremental Commitments and the related transactions under this Section 2.18 and (v) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents of the types mentioned in Section 3.01(b), (c) and (d) as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Notwithstanding Section 8.01, each Incremental Facility Agreement may, without the consent of any other Lender, effect only such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent to give effect to the Incremental Commitment referenced therein and in any event in a manner consistent with Section 2.18(b). This Section 2.18 shall supersede any provisions in Section 2.11 or Section 8.01 to the contrary.
(d) Upon effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the aggregate Commitments of all Lenders shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time notify as set forth in the Administrative Agent that certain definition of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a term “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Letter of Credit Exposure of the Incremental Lender holding such Commitment, and the Commitment Percentages of all the Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of the effectiveness of any Incremental Commitments, each Lender shall be deemed to have assigned to each Incremental Lender holding such Incremental Commitments, and each such Incremental Lender shall be deemed to have purchased from each Lender, such interests in participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such participations in Letters of Credit will be held by all the Lenders (including such Incremental Lenders) ratably in accordance with their Commitment Percentage after giving effect to the effectiveness of such Incremental Commitments. Any Loans outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are Eurocurrency Loans shall (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Lenders holding such Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time such Loans will be repaid or refinanced with new Loans made pursuant to Section 2.01 in accordance with the Commitment Percentages of the Lenders (including the Incremental Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Lender will promptly purchase (for cash at face value and in the currency of the relevant Loan) assignments of portions of such outstanding Loans of other Lenders so that, after giving effect thereto, all Loans that are Eurocurrency Loans are held by the Lenders (including the Incremental Lenders) in accordance with their then-current Commitment Percentages. Any such assignments shall be effect in accordance with the provisions of Section 8.06, provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 8.06(b) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, apply thereto. Any Loans outstanding on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount date of the Incremental Commitment effectiveness of such Incremental Lender specified in Commitments that are Base Rate Loans shall either be prepaid on such Incremental Loan Activation Notice, date or refinanced on such date (subject to the terms satisfaction of this Agreement and applicable borrowing conditions) with Loans made on such date by the applicable Lenders (including the Incremental Loan Activation NoticeLenders) in accordance with their Commitment Percentages. Nothing in this Section 2.27 shall be construed In order to obligate effect any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstandingsuch refinancing, (i) each relevant Incremental Lender shall will make available Loans that are Base Rate Loans by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Lender’s Incremental Commitment by the sum of all Commitments (after giving effect to the effectiveness of the Incremental Commitments on such date) and (ii) such funds will be applied to the prepayment of outstanding Loans that are Base Rate Loans held by the Lenders, in such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to causeso that, after giving effect to such increased Commitments and the application of such amounts to prepay thereto, all Loans under the Facility of other relevant Lenders, the that are Base Rate Loans under the Facility to will be held ratably by all the Lenders with Commitments in the Facility in accordance with their then-current Commitment Percentages. On the date of the effectiveness of such Commitments Incremental Commitments, the Borrower will pay to the Administrative Agent, for the accounts of the Lenders receiving such prepayments, accrued and unpaid interest on the aggregate principal amount of the Loans being prepaid. The Administrative Agent and the lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) The Administrative Agent shall notify Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.18(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and of the Commitment Percentages of the Lenders after giving effect to such increase, (ii) thereto and of the Company and any relevant Subsidiary Borrower shall be assignments deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay been made pursuant to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment2.18(e).
Appears in 1 contract
Samples: Credit Agreement (Legg Mason, Inc.)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory hereby agrees, severally and not jointly, to make an Incremental Loan Activation Notice severally agrees, to the Borrower on the terms and conditions of this Agreement, Incremental Commitment Effective Date in Dollars in a principal amount equal to make revolving credit loans the amount set forth opposite such Incremental Lender’s name on Schedule I attached hereto (each, an “Incremental LoanCommitment” and, collectively, the “Incremental Commitments”) ), on the terms set forth herein and in the Credit Agreement, and subject to the Company and/or conditions set forth herein. The Incremental Loans shall be deemed to be “Loans” as defined in the Credit Agreement for all purposes of the Credit Agreement, shall bear interest as provided in Section 2.07 of the Credit Agreement, shall mature and be due and payable in full on the Maturity Date, and (except as expressly provided otherwise herein) shall otherwise have terms and provisions identical to those applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount Loans outstanding at any time up immediately prior to but not exceeding the amount of the Incremental Commitment Effective Date (the “Existing Loans”).
(b) Notwithstanding anything to the contrary contained herein or in the Credit Agreement, the Incremental Loans shall initially constitute a single Borrowing of Loans for all purposes under the Credit Agreement, with an initial Interest Period that shall commence on the Incremental Commitment Effective Date and that shall end on the last day of the Interest Period applicable to the Existing Loans, and with a Eurodollar Rate for such Interest Period established pursuant to the definition of such Incremental Lender specified term in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation NoticeCredit Agreement.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, Each Incremental Lender (i) each relevant confirms that a copy of the Credit Agreement, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and make its Incremental Loan, have been made available to such Incremental Lender; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, any joint lead arranger or joint bookrunner, or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make available its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement as are delegated to the Administrative Agent by the terms thereof, together with such amounts in immediately available funds powers as are reasonably incidental thereto; and (iv) acknowledges and agrees that upon the Administrative Agent Incremental Commitment Effective Date such Incremental Lender shall determine are necessary in order to causebe a “Lender” and an “Incremental Lender” under, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lendersfor all purposes of, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increaseCredit Agreement, (ii) the Company and any relevant Subsidiary Borrower shall be deemed subject to and bound by the terms thereof, and shall perform all the obligations of and shall have prepaid all rights of a Lender and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentan Incremental Lender thereunder.
Appears in 1 contract
Incremental Commitments. (a) The Company may AfterExcept during the Covenant Relief Period, after the Amendment No. 1 Effective Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable in an amount (following the Amendment No. 1 Effective Date) not to exceed the Incremental Amount available at the time notify such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in Section 1.07 and provided that the determination of the Incremental Amount for Incremental Loans that are delayed draw term loans may be made either (x) at the time of the establishment of such Incremental Loan commitment hereunder (assuming that such Incremental Loan was fully drawn) or (y) at the time of such delayed draw funding; provided, that in the case of the foregoing clause (y), no such Incremental Loan commitments shall be included in any determination of “Required Lenders” (or any similar determination) until the time of such delayed draw funding) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent that certain (which approval shall not be unreasonably withheld, conditioned or delayed)), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shall together with any then outstanding Initial Term Loans form a single Class of) Initial Term Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Lenders designated by Initial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the Company and/or that additional lenders contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be added to this Agreement as in the sole discretion of such Lender.
(b) The Borrower and each Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Term Lender and/or Incremental Revolving Facility (a “Commitment Increase”) by executing Lender shall execute and delivering deliver to the Administrative Agent an Incremental Loan Activation Notice signed by Assumption Agreement and such Lenders or other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such additional lenders and specifying Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any (x) commitments to make additional Initial Term Loans shall have the respective same terms as the Initial Term Loans, and shall form part of the same Class of Initial Term Loans and (y) Incremental Revolving Facility Commitments shall have (A) the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments or (B) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any term is added for the benefit of any Incremental Revolving Facility Lenders, no consent shall be required from Revolving Facility Lenders and to the extent that such term is (a) also added for the benefit of the Revolving Facility Lenders or (b) is only applicable after the Initial Revolving Facility Maturity Date),
(ii) the applicable Commitment Increase Date; Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank equally and ratably in right of security with the Initial Term Loans or, at the option of the Borrower, shall (A) rank junior in right of security with the Initial Term Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Initial Term Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement) or (B) be unsecured,
(iii) (A) the final maturity date of any such Other Incremental Term Loans (other than Customary Bridge Financings), shall be no earlier than the Initial Term Facility Maturity Date and (B) except as to pricing, fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Person appointed by the Borrower to arrange such Other Incremental Term Loans (the “Incremental Arranger”) in their sole discretion), any such Other Incremental Term Loans shall have (x) the same terms as the Initial Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent any term is added for the benefit of any Other Incremental Term Loans, no consent shall be required from Term Lenders to the extent that such term is (a) also added for the benefit of the Term Loans or (b) is only applicable after giving effect the Initial Term Facility Maturity Date,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than Customary Bridge Financings) shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans,
(v) [reserved],
(vi) such Other Incremental Term Loans may participate in any mandatory prepayment of Loans on a pro rata basis (subject to the exceptions set forth in Section 2.10(b)), a less than pro rata basis or solely to the same extent that any existing Class of Term Loans participates on a greater than pro rata basis as compared to any other existing Class of Term Loans as a result of such other existing Class of Term Loans agreeing to participate on a less than pro rata basis, on a greater than pro rata basis to such Commitment Increase other Loans, than the Term Loans in any mandatory prepayment hereunder (including and, for the incurrence avoidance of doubt, the allocation of any voluntary prepayment is subject only to Section 2.11(a)),
(vii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, and
(viii) Other Incremental Term Loans on and Incremental Revolving Facility Commitments shall not be secured by any asset of the applicable Commitment Increase Date and use Borrower or its Subsidiaries other than the Collateral. Each party hereto hereby agrees that, upon the effectiveness of proceeds thereof) (x) no Default or Event of Default any Incremental Assumption Agreement, this Agreement shall be continuing amended to the extent (but only to the extent) necessary or advisable to reflect the existence and (y) the sum terms of the Total Incremental Term Loan Commitments then and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in effect (Section 9.08(e), including, for the avoidance of doubt, to the extent applicable, to (x) provide that the Lenders providing any Permitted Incremental CommitmentsTerm Loans shall have the benefit of the Financial Covenants and be included in the “Required Lenders” and (y) shall not exceed $2 billion.
(b) Each Incremental Lender make appropriate changes to Sections 6.09, 7.01 and 9.08 with respect to the control of remedies in the event of a default in respect of the Financial Covenants. Any amendment to this Agreement or any other Loan Document that is a signatory necessary to an Incremental Loan Activation Notice severally agrees, on effect the terms and conditions provisions of this Agreement, Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to make revolving credit loans (each, an “Incremental Loan”be unreasonably withheld) and furnished to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Noticeother parties hereto.
(c) On Notwithstanding the foregoing and subject, in the case of any tranche of Incremental Term Loans or any Incremental Revolving Loan that is used to finance a Limited Condition Transaction, to Section 1.07, no Incremental Term Loan Commitments or Incremental Revolving Facility Commitment Increase Dateshall become effective under this Section 2.21 unless (i) the Borrower shall be in compliance with the Standard Financial Covenants; (ii) no Event of Default (or, in the event any that the tranche of Incremental Loans is used to finance a Limited Condition Transaction and to the extent the Lenders participating in such tranche of Incremental Loans, as applicable, agree, no Event of Default under the Facility are then outstandingSections 7.01(b), (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increasec), (iih) the Company and any relevant Subsidiary Borrower or (i)) shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and exist; (iii) the Company representations and any relevant Subsidiary warranties of the Borrower set forth in this Agreement shall pay be true and correct in all material respects (other than to the relevant extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans or any Incremental Revolving Loan is used to finance a Limited Condition Transaction and to the extent the Incremental Term Lenders or Incremental Revolving Facility Lenders, participating in such tranche of Incremental Term Loans or any Incremental Revolving Facility Commitment, as applicable, agree, the amountsforegoing clause (iii) shall be limited to the Specified Representations and in the case of any Limited Condition Acquisition (other than an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies), if any, payable those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under Section 2.22 such acquisition agreement as a result of a failure of such prepaymentrepresentations to be accurate; and (iv) the Administrative Agent or with respect to any Other Incremental Term Loans, the Incremental Arranger shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent or with respect to any Other Incremental Term Loans, the Incremental Arranger. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated Borrowers may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent on up to two (2) occasions during the period from the Closing Date to the Extension Effective Date, request incremental Commitments in an Incremental Loan Activation Notice signed by amount not to exceed the aggregate amount of $15,000,000 from one or more additional Lenders (which may include any existing Lender) willing to provide such Lenders incremental Commitments in their own discretion; provided, that each incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such incremental Lender is a Lender, an Affiliate of a Lender or such additional lenders and specifying an Approved Fund. Such notice shall set forth (i) the respective Incremental amount of the incremental Commitments of such Incremental Lenders and being requested, (ii) the aggregate amount of all incremental Commitments, which when taken together with all other incremental Commitments, shall not exceed $15,000,000 in the aggregate (the “Incremental Limit”), and (iii) the date on which such incremental Commitments are requested to become effective (the “Increased Amount Date”). The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of Borrowers, to arrange a syndicate of Lenders willing to hold the requested incremental Commitments.
(b) Borrowers and each incremental Lender shall execute and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence the incremental Commitment of such incremental Lender. Each such documentation shall specify the terms of the applicable Commitment Increase Dateincremental Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Commitments shall thereafter be Commitments with the same terms as the Commitments (including as to pricing and maturity). Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments evidenced thereby, and new Notes shall be issued and Borrowers shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by Borrowers upon any such incremental Commitments shall be agreed upon by the Administrative Agent, the Lenders with incremental Commitments and Borrowers at the time of such increase. Nothing in this Section 2.19 shall constitute or be deemed to constitute an agreement by any Lender to increase its Commitments hereunder.
(c) Notwithstanding the foregoing, no incremental Commitment shall become effective under this Section 2.19 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of Borrowers, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.01 and such additional customary documents and filings as the Administrative Agent may reasonably require, including amendments to Mortgages and date downs to, and incremental increases in the amounts of coverage under, the various Title Policies, and (iii) Borrowers shall be in pro forma compliance with the covenants set forth in Section 8.07 and the Loan to Value Ratio for all of the Collateral Properties, shall be no more than sixty percent (60%), in each case after giving effect to such Commitment Increase (including incremental Commitments, the incurrence of any Incremental Loans on to be made thereunder and the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum application of the Total Commitments then in effect (includingproceeds therefrom as if made and applied on such date, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine have received a certificate to that effect dated such date and executed by a Responsible Officer of Borrowers, showing such calculations in reasonable detail.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Loans in respect of incremental Commitments, when originally made, are necessary included in order to cause, after giving effect to such increased Commitments and the application each Borrowing of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) on a pro rata basis. Borrowers agree that Section 4.05 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Company and any relevant Subsidiary Borrower shall pay Lenders to effect the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 1 contract
Samples: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Incremental Commitments. (a) The Company Borrower may at any time or from time to time notify after the Effective Date, by notice to the Administrative Agent that certain Agent, request one or more increases in the amount of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (each such increase, a “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying ); provided that (i) both at the respective time of any such request and upon the effectiveness of any Incremental Commitments of such Incremental Lenders Amendment referred to below, (x) no Default shall exist and (y) all representations and warranties in this Agreement or any other Loan Document shall be true and correct in all material respects and (ii) the applicable aggregate amount of all Commitment Increases pursuant to this Section 2.20, when added to the initial aggregate amount of the Lenders’ Commitments on the Effective Date, shall not exceed $300,000,000. Each Commitment Increase Dateshall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of the relevant Commitment Increase. Commitment Increases may be provided by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); providedprovided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 9.04 for an assignment of Revolving Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement, executed by the Parent, the Borrower, each Lender agreeing to provide such Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (it being understood that all references to “the occasion of any Borrowing” or “issuance, amendment, renewal or extension of a Letter of Credit” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Commitment Increases, unless it so agrees. Upon each increase in the Commitments pursuant to this Section 2.20, (a) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Commitment Increase (each, a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender (including each such Commitment Increase Lender) will equal the percentage of the aggregate Commitments of all Lenders represented by such Lender’s Commitment and (including the incurrence of any Incremental Loans b) if, on the applicable date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Commitment Increase Date and use be prepaid from the proceeds of proceeds thereof) additional Revolving Loans made hereunder (x) no Default or Event of Default reflecting such increase in Commitments), which prepayment shall be continuing accompanied by accrued interest on the Revolving Loans being prepaid and (y) any costs incurred by any Lender in accordance with Section 2.15. The Administrative Agent and the sum of Lenders hereby agree that the Total Commitments then minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in effect (including, for the avoidance of doubt, Incremental Commitments) this Agreement shall not exceed $2 billionapply to the transactions effected pursuant to the immediately preceding sentence.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) This Section 2.20 shall supersede any provisions in Section 2.17 or 9.02 to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Noticecontrary.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment.
Appears in 1 contract
Samples: Credit Agreement (Lorillard, Inc.)
Incremental Commitments. (a) The Company At any time during the Availability Period, subject to the terms and conditions set forth herein, the Borrower may at any time and from time to time notify the Administrative Agent that certain of the Lenders designated time, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering notice to the Administrative Agent an (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add additional Commitments (together the “Incremental Loan Activation Notice signed by Extensions of Credit”) in minimum principal amounts of $5,000,000, provided that such Lenders or amount may be less than $5,000,000 if such additional lenders and specifying (i) amount represents all the respective Incremental Commitments of such Incremental Lenders and (ii) remaining availability under the applicable Commitment Increase Date; aggregate principal amount set forth below, provided, further, that (x) immediately prior to and after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) Facility Amendment, no Default has occurred or Event of Default is continuing or shall be continuing result therefrom and (y) the sum Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed as of the Total Commitments then in effect last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available. The Incremental Extensions of Credit (including, for the avoidance of doubt, Incremental Commitmentsa) shall be in an aggregate principal amount not exceed exceeding $2 billion.
20,000,000 and (b) Each shall have the same terms as the Commitments. The Borrower may chose to offer each Lender (an “Existing Lender”) the opportunity to commit to the Incremental Extensions of Credit; provided that no Existing Lender shall be obligated to provide any Incremental Extensions of Credit unless it so agrees. Any additional bank, financial institution, Existing Lender or other Person that is elects to extend Incremental Extensions of Credit shall be reasonably satisfactory to the Administrative Agent (any such bank, financial institution, Existing Lender or other Person being called an “Additional Lender”) and shall become a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of Lender under this Agreement, pursuant to make revolving credit loans an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.20, and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. Commitments in respect of Incremental Extensions of Credit shall be Commitments for all purposes under this Agreement. An Incremental Facility 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 opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental LoanFacility 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” in such Section 4.02 shall be deemed to refer to the Company and/or Incremental Facility Closing Date). Upon each increase in the applicable Subsidiary Borrowers from time Commitments pursuant to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up this Section 2.20, each Existing Lender will automatically and without further act be deemed to but not exceeding the amount have assigned to each Additional Lender providing a portion of the Incremental Commitment Extension of Credit, and each such Additional Lender will automatically and without further act be deemed to have assumed, a portion of such Incremental Lender specified Existing Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to causethat, after giving effect to each such increased Commitments deemed assignment and assumption of participations, the application percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender (including each such Additional Lender) will equal such Lender’s Applicable Percentage and (b) if, on the date of such amounts to prepay increase, there are any Revolving Loans under outstanding, such Revolving Loans shall on the Incremental Facility Closing Date be prepaid from the proceeds of other relevant Lendersadditional Revolving Loans made hereunder (reflecting such increase in Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans under the Facility to be held ratably being prepaid and any costs incurred by all Lenders with Commitments in the Facility any Lender in accordance with such Commitments after giving effect Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to such increase, (ii) the Company and any relevant Subsidiary Borrower transactions effected pursuant to the immediately preceding sentence. The proceeds of the Incremental Extensions of Credit shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) used for the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under purposes set forth in Section 2.22 as a result of such prepayment5.11.
Appears in 1 contract
Incremental Commitments. (a) The Company may from time may, upon five (5) Business Days’ notice to time notify the Administrative Agent that certain Agent, increase the Revolving Loan Commitment amount by adding one or more lenders or increasing the Revolving Loan Commitment of the Lenders designated a Lender, determined by the Company and/or that additional in its sole discretion, subject to the consent of the Administrative Agent, Swingline Lender and Issuing Banks (such consent not to be unreasonably withheld), which lender or lenders shall be added are willing to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility commit to such increase (each such lender, a “Commitment IncreaseNew Lender,” and such commitment, the “Incremental Commitment”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying ); provided, however, that (i) the respective Company may not elect any Incremental Commitments Commitment after the occurrence and during the continuance of such Incremental Lenders and (ii) the applicable Commitment Increase Date; providedan Event of Default, including, without limitation, any Event of Default that would result after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment, (ii) each Incremental Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and in an amount not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (yiii) after giving effect to all Incremental Commitments the sum of the Total aggregate Revolving Loan Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed the Dollar Equivalent of $2 billion.
4,400,000,000 and (biv) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount effective date of the Incremental Commitment of such Incremental Commitment, each New Lender specified in such Incremental Loan Activation Noticewill, subject to the terms extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Revolving Loan Commitments. An Incremental Commitment shall become effective upon the execution by each applicable New Lender of a counterpart of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available delivering such counterpart to the Administrative Agent such amounts in immediately available funds as Agent. Over the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and term of the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) Agreement the Company and shall increase the Revolving Loan Commitments no more than five (5) times. Notwithstanding anything to the contrary in this Agreement, any relevant Subsidiary Borrower Incremental Commitment made pursuant to this Section 2.14 may be effected by adding one or more tranches of Revolving Loan Commitments that are denominated in an Alternative Currency and/or term loan commitments (which shall be deemed to have prepaid be “Revolving Loan Commitments” for purposes of this Section 2.14 (other than clause (iv) above)), and reborrowed all outstanding Loans under this Agreement and (iii) the Lenders agree that any amendment required to implement an Incremental Commitment may be effected by the consent of the Company and only those Lenders that agree to participate in any relevant Subsidiary Borrower shall pay such tranche, provided that the aggregate amount of the commitments do not exceed the Dollar Equivalent of $4,400,000,000 at any time. Notwithstanding anything to the relevant Lenders the amountscontrary herein, if any, payable under no Lender shall be required to increase its Commitment pursuant to this Section 2.22 as a result of such prepayment2.14.
Appears in 1 contract
Samples: Revolving Credit Agreement (American Tower Corp /Ma/)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated Borrower may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Loan Activation Notice signed by Amount available at the time such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Lenders and (ii) Term Loans and/or Incremental Revolving Facility Commitments, as the applicable Commitment Increase Datecase may be, in their own discretion; provided, that after giving effect to such Commitment Increase (including the incurrence of any each Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Revolving Facility Lender that is providing a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, commitment to make revolving credit loans (each, an “Incremental Loan”) shall be subject to the Company and/or approval of the applicable Subsidiary Borrowers from time Administrative Agent and, to time on or after the Commitment Increase Date specified in extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Loan Activation Notice Revolving Facility Lender is a Revolving Facility Lender or a lender in an aggregate principal amount outstanding at any time up to but not exceeding respect of the Existing Revolving Facility Loans. Such notice shall set forth (i) the amount of the Incremental Commitment Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of such Incremental Lender specified in such Incremental Loan Activation Notice$5,000,000 and a minimum amount of $10,000,000, subject or equal to the terms of this Agreement and the applicable remaining Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase DateAmount or, in the event any Loans under the Facility are then outstandingeach case, (ix) each relevant Incremental Lender shall make available to such lesser amount approved by the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments or (y) in the case of Incremental Term Loan Commitments and/or Incremental Revolving Facility in accordance with such Commitments after giving effect established pursuant to such increaseclause (ii) of or (iv) of the definition of “Incremental Amount”, any amount thereof), (ii) the Company and any relevant Subsidiary Borrower shall be deemed date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to have prepaid and reborrowed all outstanding Loans under this Agreement and become effective, (iii) in the Company case of Incremental Revolving Facility Commitments, that such Incremental Revolving Facility Commitments are to be commitments to make Revolving Facility Loans (including whether such Incremental Revolving Facility Commitments shall constitute Super-Priority Obligations) and any relevant Subsidiary Borrower shall pay whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the relevant Lenders same terms as the amounts, if any, payable under Section 2.22 as a result of such prepayment.Initial Revolving Loans or
Appears in 1 contract
Samples: First Lien Credit Agreement (Rackspace Technology, Inc.)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify after the Closing Date, and prior to the Revolving Facility Maturity Date, request that the Incremental Amount be provided by one or more Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments in their own discretion; provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated Incremental Revolving Facility Commitments being requested (which shall be in a minimum amount of $15.0 million and in minimum increments of $5.0 million in excess thereof or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”) and (iii) whether such Incremental Revolving Loan Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing terms, final maturity date, upfront or similar fees and/or participation in prepayments different from the Revolving Facility Loans (“Other Revolving Loans”). If the initial pricing terms on the requested Other Revolving Loans (which shall be equal to the sum of (x) the margin above Adjusted LIBO Rate on the requested Other Revolving Loans and (y) any original issue discount or upfront fees paid to all lenders providing such Other Revolving Loans with respect to the requested Other Revolving Loans divided by the Company and/or that additional lenders lesser of (A) the average life to maturity of such Other Revolving Loans and (B) four) exceeds the pricing terms of any of the then existing Revolving Facility Loans (which shall be added equal to this Agreement as Incremental the sum of (x) the Applicable Margin then in effect for such existing Revolving Facility Loans that are Eurocurrency Revolving Loans and (y) any original issue discount or upfront fees payable to all Revolving Facility Lenders with Commitments for respect to such existing Revolving Facility Loans, divided by the purpose lesser of increasing (A) the average life to maturity of such existing Commitments under the Revolving Facility Loans and (a “Commitment Increase”B) four) by executing more than 50 basis points, then the applicable margin then in effect for each such existing Revolving Facility Loan shall automatically be increased to the extent necessary such that the pricing terms (as defined above) of each such existing Revolving Facility Loans is equal to the pricing terms of the requested Other Revolving Facility Loans minus 50 basis points, effective upon the making of the requested Other Revolving Loans.
(b) The Borrower and delivering each Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed by Assumption Agreement and such Lenders or other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Revolving Facility Commitments; provided that (i) the respective Incremental Commitments Other Revolving Loans shall have the same guarantees as and rank pari passu or junior in right of payment and of security with the Revolving Facility Loans and, except as to pricing, final maturity date, participation in prepayments and/or upfront or similar fees, shall have (x) the same terms as the Revolving Facility Loans, or (y) intercreditor arrangements and such Incremental Lenders and other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the applicable Commitment Increase Date; providedfinal maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date then in effect, that after giving effect to such Commitment Increase and (including iii) the incurrence Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory prepayment or commitment reduction hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loans Assumption Agreement in accordance with its terms, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Loan Commitments evidenced thereby, notwithstanding anything to the contrary set forth in Section 10.08 of this Agreement. Any such deemed amendment may be memorialized in writing by the Administrative Agent with Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the applicable Commitment Increase Date date of such effectiveness, both before and use of proceeds thereof) after such effectiveness, (x) there is no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 Borrower shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increasePro Forma Compliance, (ii) the Company Administrative Agent shall have received a certificate to that effect dated such date and any relevant Subsidiary executed by a Responsible Officer of the Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement containing calculations in reasonable detail demonstrating compliance with the requirement contained in preceding subclause (i)(y), and (iii) the Company Administrative Agent shall have received customary legal opinions, board resolutions and any other customary closing certificates and documentation as required by the relevant Subsidiary Borrower shall pay Incremental Assumption Agreement and, to the relevant Lenders extent required by the amountsAdministrative Agent, if any, payable consistent with those delivered on the Closing Date under Section 2.22 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Revolving Facility Loans and/or Other Revolving Loans in respect of the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a result pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of such prepaymentEurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Verso Paper Corp.)
Incremental Commitments. (a) The Company Borrower may from time to time notify the Administrative Agent that certain of the Lenders designated on one or more occasions, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent an (which shall promptly deliver a copy thereof to each Lender), request the establishment of Incremental Loan Activation Notice signed by Commitments, provided that the aggregate amount of all the Incremental Commitments established hereunder shall not exceed $20,000,000. Each such Lenders or such additional lenders and specifying notice shall specify (i) the respective date on which the Borrower proposes that the Incremental Commitments of shall be effective, which shall be a date not less than 15 days after the date on which such Incremental Lenders notice is delivered to the Administrative Agent, and (ii) the applicable Commitment Increase Dateamount of the Incremental Commitments being requested, and shall offer to each Non-Defaulting Lender the opportunity to provide a portion of the amount of the Incremental Commitments being requested equal to its Applicable Percentage (calculated disregarding the Commitments of Defaulting Lenders, if any) thereof. Each Lender shall, by notice to the Borrower and the Administrative Agent given not more than seven days after the date on which the Administrative Agent shall have delivered the Borrower’s notice, either agree to provide all or a portion of its Applicable Percentage (as so calculated) of the amount of the Incremental Commitments being requested or decline to do so (and any Lender that does not deliver such notice within such period of seven days shall be deemed to have declined to do so). If, on the seventh day after the Administrative Agent shall have delivered the Borrower’s notice, the Lenders shall have agreed pursuant to the preceding sentence to provide Incremental Commitments in an aggregate amount less than the amount of the Incremental Commitments being requested, the Borrower may arrange for one or more banks or other financial institutions, which may include any Lender, to provide Incremental Commitments in an aggregate amount equal to the amount of such deficiency; providedprovided that any Person that the Borrower proposes to become an Incremental Lender, that after giving effect if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to such Commitment Increase the Administrative Agent and each Issuing Bank.
(including the incurrence b) The terms and conditions of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and Loans and other extensions of credit made hereunder, it being agreed, however, that in connection with the effectiveness of any Incremental Commitment, subject to the consent of the Borrower, this Agreement may be modified to increase (but not decrease) the Applicable Rate and fees payable for the account of the Lenders pursuant to Section 2.11, so long as such increase is effective for the benefit of all the Lenders hereunder on equal terms.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the applicable Commitment Increase Date Borrower, each Incremental Lender providing such Incremental Commitments and use of proceeds thereof) the Administrative Agent; provided that no Incremental Commitments shall become effective unless (xi) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief executive officer or the chief financial officer of the Borrower, dated as of the date of effectiveness thereof, certifying that the representations and warranties of each Loan Party set forth in the Loan Documents are true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (yB) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall have been so true and correct on and as of such prior date, (iii) the sum Borrower shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section 2.20 and (iv) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Total Commitments then Administrative Agent, to give effect to the provisions of this Section (including any increase referred to in effect paragraph (includingb) above).
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, for (i) such Incremental Lender, if not already a Lender, shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitments) Commitment, the Revolving Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall not exceed $2 billionautomatically be adjusted to give effect thereto.
(be) Each On the date of effectiveness of any Incremental Commitments, each Lender shall assign to each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in holding such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of Commitment, and each such Incremental Lender specified shall purchase from each Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and participations in Letters of Credit and Protective Advances outstanding on such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 date as shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to causethat, after giving effect to all such increased Commitments assignments and the application purchases, such Loans and participations in Letters of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to Credit and Protective Advances will be held ratably by all the Lenders with Commitments in the Facility (including such Incremental Lenders) ratably in accordance with such Commitments their Applicable Percentages after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result effectiveness of such prepaymentIncremental Commitment. The Administrative Agent shall notify the Lenders promptly of the effectiveness of any Incremental Commitments, advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to this paragraph.
Appears in 1 contract
Incremental Commitments. (a) The Company and any one or more Banks (including New Banks) may from time to time notify agree that such Banks shall make, obtain or increase the Administrative Agent that certain amount of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as their Commitments (“Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment IncreaseCommitments”) ), by executing and delivering to the Administrative Agent an Incremental Loan Increased Facility Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments amount of such Incremental Lenders Commitment and (ii) the applicable Commitment Increase Increased Facility Closing Date; providedprovided that, that immediately prior to and after giving effect to any such Commitment Increase increase in the Commitments (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (xi) no Default or Event of Default shall have occurred and be continuing and (yii) the sum each of the Total representations and warranties made by the Company in or pursuant to the Credit Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality or “Material Adverse Effect”, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality or “Material Adverse Effect”, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of Incremental Commitments then in effect (including, for obtained after the avoidance of doubt, Incremental Commitments) Restatement Effective Date pursuant to this paragraph shall not exceed $2 billion100,000,000, (ii) without the consent of the Administrative Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of at least $10,000,000 and (iii) all Incremental Commitments shall be documented solely as an increase to the Commitments, all Loans under Incremental Commitments (“Incremental Loans”) shall be identical to the Loans, and the terms and provisions of the Incremental Commitments and Incremental Loans shall be no more favorable than those applicable to the Commitments and Loans, respectively, including, without limitation, in respect of any interest rate margin applicable to any such Incremental Loans and any undrawn commitment fee payable to any Bank or New Bank (as defined below) in connection with such Incremental Commitments. No Bank shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Each Incremental Lender that is Any additional bank, financial institution or other entity which, with the consent of the Company and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a signatory “Bank” under this Agreement in connection with any transaction described in Section 2.21(a) shall execute a New Bank Supplement (each, a “New Bank Supplement”), substantially in the form of Exhibit F-2, whereupon such bank, financial institution or other entity (a “New Bank”) shall become a Bank for all purposes and to an Incremental Loan Activation Notice severally agrees, on the terms same extent as if originally a party hereto and conditions shall be bound by and entitled to the benefits of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date, the Company shall borrow Loans under the relevant increased Commitments from each Bank (including New Banks) participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the event any Loans under the Facility are case of Term SOFR Loans, of each Term SOFR Tranche) which would then outstanding, have been outstanding from such Bank if (i) each relevant Incremental Lender shall make available such Type or Term SOFR Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Term SOFR Tranche requested to be so borrowed or effected had been proportionately increased. The Term SOFR applicable to any Term SOFR Loan borrowed pursuant to the Administrative Agent preceding sentence shall equal the Term SOFR then applicable to the Term SOFR Loans of the other Banks in the same Term SOFR Tranche (or, until the expiration of the then-current Interest Period, such amounts in immediately available funds other rate as shall be agreed upon between the Company and the relevant Bank). If on such Increased Facility Closing Date there are any Loans outstanding, the Administrative Agent shall determine are take those steps which it deems, in its sole discretion and in consultation with the Company, necessary and appropriate to result in order to cause, each Bank (including each New Bank) having a pro-rata share of the outstanding Loans based on each such Bank’s Commitment Percentage immediately after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments increase in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentCommitments.
Appears in 1 contract
Samples: Credit Agreement (Lazard LTD)
Incremental Commitments. (a) The Company Borrower may from time to time notify by written notice (which may be included in the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”Additional Credit Extension Amendment itself) by executing and delivering to the Administrative Agent an Incremental elect to seek (w) commitments (“Additional Revolving Commitments”) to increase the Revolving Facility Commitments of any Class, (x) commitments (“Additional Term Loan Activation Notice signed by such Lenders Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans, (y) commitments (“Other Term A Loan Commitments”) to establish a Class of Other Term A Loans or such additional lenders and specifying (z) commitments (“Term B Loan Commitments”) to establish a new Class of Term B Loans; provided that:
(i) the respective aggregate principal amount of all Incremental Commitments after the Closing Date, together with the aggregate principal amount of Incremental Equivalent Debt incurred after the Closing Date and outstanding at such time, shall not exceed the Incremental Lenders Amount and calculation of the Incremental Amount shall be made on Pro Forma Basis and evidenced by a certificate from a Financial Officer of Parent or Borrower;
(ii) any such increase or any new Class shall be in an aggregate amount of $25,000,000 or any whole multiple of $5,000,000 (or such other amount approved by the Administrative Agent) in excess thereof; provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i) or is otherwise approved by the Administrative Agent;
(iii) no existing Lender shall be required to provide any Incremental Commitments unless it otherwise agrees and no existing Lender (or its Affiliates or Approved Funds) will have any right of first offer or right of first refusal with respect thereto;
(iv) the terms of each Incremental Term Facility will be as agreed between the applicable Commitment Increase Borrowers and the Persons providing such Incremental Term Facility; provided that:
(A) any Additional Revolving Commitments shall have the same terms as the Revolving Facility Commitments that is being increased (except that the Lenders providing Additional Revolving Commitments may receive customary upfront fees in connection therewith);
(B) the final maturity date of any Other Term A Loan shall be no earlier than the Term A Facility Maturity Date; provided, and the final maturity date of any Term B Loan shall be no earlier than one year following the Term A Facility Maturity Date, except for Permitted Short Term Debt;
(C) the Weighted Average Life to Maturity of any Other Term A Loan shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term A Loans, and the Weighted Average Life to Maturity of any Term B Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term A Loans, except for Permitted Short Term Debt;
(D) the Other Term A Loans shall share on a pro rata basis (or if agreed by the Incremental Term Lenders providing such Other Term A Loans, on a less than pro rata basis) in any mandatory prepayment or voluntary prepayment of the Term A Loans hereunder, and the Term B Loans shall share on a pro rata basis (or if agreed by the Incremental Term Lenders providing such Term B Loans, on a less than pro rata basis) in any mandatory prepayment or voluntary prepayment of other Term Loans hereunder;
(E) except as to amortization, sharing of prepayments and final maturity date (which shall, subject to clauses (B), (C) and (D) of this proviso, be determined by the Borrower and the then committing Incremental Term Lenders in their sole discretion), the Other Term A Loans shall have (x) the same terms as the then outstanding Term A Loans (including with respect to pricing) or (y) terms that are less favorable to the Incremental Term Lenders providing such Other Term A Loans than the terms of the Term A Loans as determined in the reasonable determination of the Administrative Agent and the Borrower, except to the extent such provisions apply only after giving effect the Term A Facility Maturity Date or such other provisions apply equally for the benefit of the Term A Lenders (including with respect to pricing) and, to the extent applicable (other than pricing and amortization), the Revolving Facility Lenders;
(F) except as to pricing, amortization, sharing of prepayments and final maturity date (which shall, subject to clauses (B), (C) and (D) of this proviso, be determined by the Borrower and the then committing Incremental Term Lenders in their sole discretion), (a) the covenants and events of default applicable to Term B Loans shall not be materially more favorable (when taken as a whole) to the Incremental Term Lenders providing the Term B Loans than those applicable to the Term A Facility (except to the extent such terms apply only after the then Latest Maturity Date or such covenants or other terms apply equally for the benefit of the other Lenders holding Term A Loans) as determined in the reasonable determination of the Administrative Agent and the Borrower, (b) at the sole discretion of the Borrower and the Incremental Term Lenders providing the Term B Loans, the Term B Loans may benefit from a prepayment premium not applicable to the other outstanding Facilities and (c) the operational and agency provisions applicable to such Commitment Increase Term B Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower; and
(including 1) the incurrence security interest and guaranties benefiting the Incremental Term Loans will rank pari passu in right of payment and security with the existing Facilities, (2) no Person shall guarantee the obligations with respect to any Incremental Term Loans unless such Person is a Loan Party and (3) no Incremental Term Loans will be secured by any property that does not constitute Collateral under the existing Facilities.
(b) The availability of any Incremental Commitments or Incremental Term Loans under this Agreement will be subject solely to the following conditions, subject, for the avoidance of doubt, to Section 1.09, measured (at the election of Parent or Borrower) on the applicable Commitment Increase Date and use date of proceeds thereofthe initial borrowing under (or receipt of commitments with respect to) such Facility:
(xi) no Default or Event of Default shall have occurred and be continuing and continuing; provided that the condition set forth in this clause (yi) may be waived or not required (other than with respect to Specified Events of Default) by the Persons providing such Facilities if the proceeds of the initial Borrowings thereunder will be used to finance, in whole or in part, a Permitted Business Acquisition or other Investment permitted hereunder; and
(ii) the sum representations and warranties set forth in the Loan Documents shall be true and correct in all material respects as of such date, as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) (provided that representations and warranties that are qualified by materiality shall be true and correct in all respects); provided that the condition set forth in this clause (ii) may be limited to customary “SunGard” style conditionality by the Persons providing such Facilities if the proceeds of the Total Commitments then initial Borrowings thereunder will be used to finance, in effect (includingwhole or in part, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billiona Permitted Business Acquisition or other Investment permitted hereunder.
(bc) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on such notice shall specify (x) the terms and conditions of this Agreement, to make revolving credit loans date (each, an “Incremental LoanCommitments Effective Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Person and the consent of the Persons specified in Section 9.04(b)(i) shall have been received with respect thereto to the Company and/or extent as would be required if the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount Lender of the Incremental Commitment of such were an assignee) whom the Borrower proposes would provide the Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement Commitments and the applicable portion of the Incremental Loan Activation Notice. Nothing in this Section 2.27 shall Commitment to be construed to obligate any Lender to execute an Incremental Loan Activation Noticeprovided by each such Person.
(cd) On Upon the incurrence of Additional Revolving Commitment pursuant to this Section 2.22, the Borrower shall prepay any Revolving Facility Loans outstanding on the Incremental Commitments Effective Date with respect to any Additional Revolving Commitment Increase (and pay any additional amounts required pursuant to Section 2.17) to the extent necessary to keep the outstanding Revolving Facility Loans pro rata across all Classes of Revolving Facility Commitments arising from any nonratable increase in the Revolving Facility Commitments. If there is a new borrowing of Revolving Facility Loans on such Incremental Commitments Effective Date, in the event any Loans under the Revolving Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, Lenders after giving effect to such increased Additional Revolving Commitments and the application of shall make such amounts to prepay Revolving Facility Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Section 2.01(c).
(e) The Incremental Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed documented by an Additional Credit Extension Amendment executed by the Persons providing the Incremental Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender or other Person), and the Additional Credit Extension Amendment may provide for such amendments to have prepaid and reborrowed all outstanding Loans under 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 2.22.
(iiif) the Company and This Section 2.22 shall supersede any relevant Subsidiary Borrower shall pay provisions in Section 2.19 or Section 9.08 to the relevant contrary. The Administrative Agent and the Lenders hereby further agree that the amountsminimum borrowing, if any, payable under pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to Section 2.22 as a result of such prepayment2.22.
Appears in 1 contract
Samples: Credit Agreement (EVERTEC, Inc.)
Incremental Commitments. (a) The Company Borrower may from time to time notify by written notice (which may be included in the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”Additional Credit Extension Amendment itself) by executing and delivering to the Administrative Agent an Incremental elect to seek (w) commitments (“Additional Revolving Commitments”) to increase the Revolving Facility Commitments of any Class, (x) commitments (“Additional Term Loan Activation Notice signed by such Lenders Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans, (y) commitments (“Other Term A Loan Commitments”) to establish a Class of Other Term A Loans or such additional lenders and specifying (z) commitments (“Term B Loan Commitments”) to establish a new Class of Term B Loans; provided that:
(i) the respective aggregate principal amount of all Incremental Commitments after the Closing Date, together with the aggregate principal amount of Incremental Equivalent Debt incurred after the Closing Date and outstanding at such time, shall not exceed the Incremental Lenders Amount and calculation of the Incremental Amount shall be made on Pro Forma Basis and evidenced by a certificate from a Financial Officer of Parent or Borrower;
(ii) any such increase or any new Class shall be in an aggregate amount of $25,000,000 or any whole multiple of $5,000,000 (or such other amount approved by the Administrative Agent) in excess thereof; provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i) or is otherwise approved by the Administrative Agent;
(iii) no existing Lender shall be required to provide any Incremental Commitments unless it otherwise agrees and no existing Lender (or its Affiliates or Approved Funds) will have any right of first offer or right of first refusal with respect thereto;
(iv) the terms of each Incremental Term Facility will be as agreed between the applicable Commitment Increase Borrowers and the Persons providing such Incremental Term Facility; provided that:
(A) any Additional Revolving Commitments shall have the same terms as the Revolving Facility Commitments that is being increased (except that the Lenders providing Additional Revolving Commitments may receive customary upfront fees in connection therewith);
(B) the final maturity date of any Other Term A Loan shall be no earlier than the Term A Facility Maturity Date; provided, and the final maturity date of any Term B Loan shall be no earlier than the later of (x) one year following the Term A Facility Maturity Date and (y) the Incremental Term B Loan Facility Maturity Date, except for Permitted Short Term Debt;
(C) the Weighted Average Life to Maturity of any Other Term A Loan shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term A Loans, and the Weighted Average Life to Maturity of any Term B Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term A Loans or the existing Incremental Term B Loans, except for Permitted Short Term Debt;
(D) the Other Term A Loans shall share on a pro rata basis (or if agreed by the Incremental Term Lenders providing such Other Term A Loans, on a less than pro rata basis) in any mandatory prepayment or voluntary prepayment of the Term A Loans hereunder, and the Term B Loans shall share on a pro rata basis (or if agreed by the Incremental Term Lenders providing such Term B Loans, on a less than pro rata basis) in any mandatory prepayment or voluntary prepayment of the Incremental Term B Loans or any other Term Loans hereunder;
(E) except as to amortization, sharing of prepayments and final maturity date (which shall, subject to clauses (B), (C) and (D) of this proviso, be determined by the Borrower and the then committing Incremental Term Lenders in their sole discretion), the Other Term A Loans shall have (x) the same terms as the then outstanding Term A Loans (including with respect to pricing) or (y) terms that are less favorable to the Incremental Term Lenders providing such Other Term A Loans than the terms of the Term A Loans as determined in the reasonable determination of the Administrative Agent and the Borrower, except to the extent such provisions apply only after giving effect the Term A Facility Maturity Date or such other provisions apply equally for the benefit of the Term A Lenders (including with respect to pricing) and, to the extent applicable (other than pricing and amortization), the Revolving Facility Lenders;
(F) except as to pricing, amortization, sharing of prepayments and final maturity date (which shall, subject to clauses (B), (C) and (D) of this proviso, be determined by the Borrower and the then committing Incremental Term Lenders in their sole discretion), (a) the covenants and events of default applicable to Term B Loans shall not be materially more favorable (when taken as a whole) to the Incremental Term Lenders providing the Term B Loans than those applicable to the Term A Facility or the Incremental Term B Loan Facility (except to the extent such terms apply only after the then Latest Maturity Date or such covenants or other terms apply equally for the benefit of the other Lenders holding Term A Loans and Incremental Term B Loans) as determined in the reasonable determination of the Administrative Agent and the Borrower, (b) at the sole discretion of the Borrower and the Incremental Term Lenders providing the Term B Loans, the Term B Loans may benefit from a prepayment premium not applicable to the other outstanding Facilities and (c) the operational and agency provisions applicable to such Commitment Increase Term B Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower; and
(including 1) the incurrence security interest and guaranties benefiting the Incremental Term Loans will rank pari passu in right of payment and security with the existing Facilities, (2) no Person shall guarantee the obligations with respect to any Incremental Term Loans unless such Person is a Loan Party and (3) no Incremental Term Loans will be secured by any property that does not constitute Collateral under the existing Facilities.; and
(b) The availability of any Incremental Commitments or Incremental Term Loans under this Agreement will be subject solely to the following conditions, subject, for the avoidance of doubt, to Section 1.09, measured (at the election of Parent or Borrower) on the applicable Commitment Increase Date and use date of proceeds thereofthe initial borrowing under (or receipt of commitments with respect to) such Facility:
(xi) no Default or Event of Default shall have occurred and be continuing and continuing; provided that the condition set forth in this clause (yi) may be waived or not required (other than with respect to Specified Events of Default) by the Persons providing such Facilities if the proceeds of the initial Borrowings thereunder will be used to finance, in whole or in part, a Permitted Business Acquisition or other Investment permitted hereunder; and
(ii) the sum representations and warranties set forth in the Loan Documents shall be true and correct in all material respects as of such date, as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) (provided that representations and warranties that are qualified by materiality shall be true and correct in all respects); provided that the condition set forth in this clause (ii) may be limited to customary “SunGard” style conditionality by the Persons providing such Facilities if the proceeds of the Total Commitments then initial Borrowings thereunder will be used to finance, in effect (includingwhole or in part, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billiona Permitted Business Acquisition or other Investment permitted hereunder.
(bc) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on such notice shall specify (x) the terms and conditions of this Agreement, to make revolving credit loans date (each, an “Incremental LoanCommitments Effective Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Person and the consent of the Persons specified in Section 9.04(b)(i) shall have been received with respect thereto to the Company and/or extent as would be required if the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount Lender of the Incremental Commitment of such were an assignee) whom the Borrower proposes would provide the Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement Commitments and the applicable portion of the Incremental Loan Activation Notice. Nothing in this Section 2.27 shall Commitment to be construed to obligate any Lender to execute an Incremental Loan Activation Noticeprovided by each such Person.
(cd) On Upon the incurrence of Additional Revolving Commitment pursuant to this Section 2.22, the Borrower shall prepay any Revolving Facility Loans outstanding on the Incremental Commitments Effective Date with respect to any Additional Revolving Commitment Increase (and pay any additional amounts required pursuant to Section 2.17) to the extent necessary to keep the outstanding Revolving Facility Loans pro rata across all Classes of Revolving Facility Commitments arising from any nonratable increase in the Revolving Facility Commitments. If there is a new borrowing of Revolving Facility Loans on such Incremental Commitments Effective Date, in the event any Loans under the Revolving Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, Lenders after giving effect to such increased Additional Revolving Commitments and the application of shall make such amounts to prepay Revolving Facility Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Section 2.01(c).
(e) The Incremental Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed documented by an Additional Credit Extension Amendment executed by the Persons providing the Incremental Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender or other Person), and the Additional Credit Extension Amendment may provide for such amendments to have prepaid and reborrowed all outstanding Loans under 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 2.22.
(iiif) the Company and This Section 2.22 shall supersede any relevant Subsidiary Borrower shall pay provisions in Section 2.19 or Section 9.08 to the relevant contrary. The Administrative Agent and the Lenders hereby further agree that the amountsminimum borrowing, if any, payable under pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to Section 2.22 as a result of such prepayment2.22.
Appears in 1 contract
Samples: Credit Agreement (EVERTEC, Inc.)
Incremental Commitments. (a) The Company may Borrower shall have the right to request at any time and from time to time notify that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders, subject to the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to terms set forth in this Agreement as Incremental Lenders with Section 2.15) provide an increase in Revolving Commitments for the purpose of increasing the existing Commitments under the Facility (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, make Loans pursuant thereto; it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by executing the Borrower;
(ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender;
(iii) each Incremental Facility shall be denominated in U.S. Dollars;
(iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Loans, Permitted Pari Passu Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date;
(vi) the proceeds of all Incremental Facilities incurred by the Borrower may be used for any purpose not prohibited under this Agreement;
(vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment;
(viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and delivering optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity (in each case of the foregoing clauses (a) and (b), excluding for this purpose (x) interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of incurrence), (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding Term B-2 Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Term B-2 Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent an and may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Loan Activation Notice signed by such Lenders or such additional Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders and specifying (i) the respective Incremental Commitments of providing such Incremental Lenders Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-2 Loans, such terms (iiif favorable to the existing Lenders) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) automatically incorporated into the sum Credit Documents for the benefit of the Total Commitments then in effect (all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans);
(ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the 2023 Revolving Loans and the 2023 Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be 2023 Revolving Loans, including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the 2023 Revolving Loans, (B) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Applicable Commitment Fee Rate applicable to the 2023 Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the 2023 Revolving Loans, (D) after giving effect to such Revolving Commitment Increases, Revolving Commitments shall be reduced based on each Lender’s Pro Rata Percentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the 2023 Revolving Loans;
(x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans;
(xi) any Tranche of Additional/Replacement Revolving Commitments shall not exceed $2 billionrequire any scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the 2023 Revolving Loans and 2023 Revolving Commitments and shall be on substantially the same terms as those applicable to the 2023 Revolving Loans and 2023 Revolving Commitments (other than as set forth herein or otherwise reasonably acceptable to the Administrative Agent);
(xii) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall, to the extent secured, be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty and shall be secured by only the Collateral securing the Obligations hereunder;
(xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Revolving Commitment Increases, Additional/Replacement Revolving Commitments and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) and such Loans shall thereafter be deemed to be Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents; and
(xiv) all Incremental Commitment Requirements are satisfied.
(b) Each At the time of the provision of Incremental Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender that is a signatory or other Eligible Transferee which agrees to provide an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans Commitment (each, an “Incremental LoanLender”) shall execute and deliver to the Company and/or Administrative Agent an Incremental Amendment (which shall not require the applicable Subsidiary Borrowers from time to time on or after consent of any other Lender), with the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Lender specified in such Incremental Loan Activation Notice, subject Amendment shall have been delivered to the terms Administrative Agent, (x) all fees required to be paid in connection therewith at the time of this Agreement such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and the applicable Incremental Loan Activation Notice. Nothing (z) all other conditions set forth in this Section 2.27 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be construed deemed modified to obligate reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Lender Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to execute an such Incremental Loan Activation NoticeLender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) On any Commitment Increase DateNotwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the event any following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same maturity date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately; and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.07, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the Facility are then outstanding, respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application incurrence of such amounts new Incremental Term Loans pursuant to prepay Loans under Section 2.01(c)) on a pro rata basis. To the Facility extent the provisions of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and preceding clause (iii) the Company and any relevant Subsidiary Borrower shall pay require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result then outstanding Borrowings of SOFR Loans of such prepaymentTranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by the Administrative Agent of the Adjusted Term SOFR in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrower shall have the right to request at any time and from time to time notify that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders, subject to the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to terms set forth in this Agreement as Incremental Lenders with Section 2.15) provide an increase in Revolving Commitments for the purpose of increasing the existing Commitments under the Facility (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, make Loans pursuant thereto; it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by executing the Borrower;
(ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender;
(iii) each Incremental Facility shall be denominated in U.S. Dollars;
(iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Loans, Permitted Pari Passu Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date;
(vi) the proceeds of all Incremental Facilities incurred by the Borrower may be used for any purpose not prohibited under this Agreement;
(vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment;
(viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and delivering optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity (in each case of the foregoing clauses (a) and (b), excluding for this purpose (x) interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of incurrence); (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding Term B-3 Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Term B-3 Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent an and may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Loan Activation Notice signed by such Lenders or such additional Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders and specifying (i) the respective Incremental Commitments of providing such Incremental Lenders Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-3 Loans, such terms (iiif favorable to the existing Lenders) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) automatically incorporated into the sum Credit Documents for the benefit of the Total Commitments then in effect (all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans);
(ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the 2023 Revolving Loans and the 2023 Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be 2023 Revolving Loans, including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the 2023 Revolving Loans, (B) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Applicable Commitment Fee Rate applicable to the 2023 Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the 2023 Revolving Loans, (D) after giving effect to such Revolving Commitment Increases, Revolving Commitments shall be reduced based on each Lender’s Pro Rata Percentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the 2023 Revolving Loans;
(x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans;
(xi) any Tranche of Additional/Replacement Revolving Commitments shall not exceed $2 billionrequire any scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the 2023 Revolving Loans and 2023 Revolving Commitments and shall be on substantially the same terms as those applicable to the 2023 Revolving Loans and 2023 Revolving Commitments (other than as set forth herein or otherwise reasonably acceptable to the Administrative Agent);
(xii) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall, to the extent secured, be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty and shall be secured by only the Collateral securing the Obligations hereunder;
(xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Revolving Commitment Increases, Additional/Replacement Revolving Commitments and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) and such Loans shall thereafter be deemed to be Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents; and
(xiv) all Incremental Commitment Requirements are satisfied.
(b) Each At the time of the provision of Incremental Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender that is a signatory or other Eligible Transferee which agrees to provide an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans Commitment (each, an “Incremental LoanLender”) shall execute and deliver to the Company and/or Administrative Agent an Incremental Amendment (which shall not require the applicable Subsidiary Borrowers from time to time on or after consent of any other Lender), with the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Lender specified in such Incremental Loan Activation Notice, subject Amendment shall have been delivered to the terms Administrative Agent, (x) all fees required to be paid in connection therewith at the time of this Agreement such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and the applicable Incremental Loan Activation Notice. Nothing (z) all other conditions set forth in this Section 2.27 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be construed deemed modified to obligate reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Lender Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to execute an such Incremental Loan Activation NoticeLender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) On any Commitment Increase DateNotwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the event any following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same maturity date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately; and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.07, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the Facility are then outstanding, respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application incurrence of such amounts new Incremental Term Loans pursuant to prepay Loans under Section 2.01(c)) on a pro rata basis. To the Facility extent the provisions of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and preceding clause (iii) the Company and any relevant Subsidiary Borrower shall pay require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result then outstanding Borrowings of SOFR Loans of such prepaymentTranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by the Administrative Agent of the Adjusted Term SOFR in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
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Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Loan Commitments in an amount not to exceed in the aggregate the Incremental Amount from one or more Incremental Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loan Commitments in their own discretion; provided, that each Incremental Term Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld) unless such Incremental Term Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated by Incremental Term Loan Commitments being requested and (ii) the Company and/or that additional lenders date on which such Incremental Term Loan Commitments are requested to become effective.
(b) The Borrower and each Incremental Term Lender shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing execute and delivering deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Activation Notice signed Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify that from and 57 after the effectiveness of the Incremental Assumption Agreement and the funding thereunder, the associated Incremental Term Loans shall thereafter be Term A Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary, which includes amending Section 2.10, to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by such Lenders or such additional lenders the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and specifying furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.20 unless (i) on the respective Incremental Commitments date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided that in the event that the Incremental Term Loan Commitments are used to finance a Permitted Business Acquisition, the condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be limited to customary “specified representations” and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, and the condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall be made by the Borrower at the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition, (ii) the applicable Commitment Increase Date; providedAdministrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with the existing Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Commitment Increase (including Incremental Term Loan Commitment, the incurrence of any Incremental Loans on to be made thereunder and the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum application of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billionproceeds therefrom as if made and applied on such date.
(bd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Lender Term Loans are in the form of additional Term A Loans when originally made, and are included in each Borrowing and repayment (including pursuant to Section 2.10(a)(i)) of outstanding Term A Loans. The Borrower agrees that is a signatory Section 2.16 shall apply to an Incremental Loan Activation Notice severally agrees, on any conversion of EurocurrencyTerm Benchmark Loans to ABR Loans reasonably required by the terms and conditions Lenders to effect the foregoing.
(e) Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (j) of this AgreementSection 2.20)) or any other Loan Document, pursuant to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers one or more offers made from time to time by the Borrower to all Lenders on or after a pro rata basis (“Extension Offers”), the Commitment Increase Date specified Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up Extension Offers to but not exceeding extend the amount maturity date of each such Lender’s Term A Loans to each such Lender and to otherwise modify the terms of such Lender’s Term A Loans pursuant to the terms of the relevant Extension Offer (including increasing the interest rate or fees and/or modifying the amortization schedule in respect thereof). Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Commitment Term Loan for such Lender (if such Lender is extending an existing Term A Loan) (such extended Term A Loan, an “Extended Term Loan”).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans of such Extending Lender. Each Incremental Lender specified Assumption Agreement shall specify the terms of the applicable Extended Term Loans; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in such Incremental Loan Activation Noticeprepayments (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term A Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be later than the Term A Facility Maturity Date, (iii) the weighted average life to maturity of any Extended Term Loans shall be longer than the remaining weighted average life to maturity of the Term A Loans, and (iv) other than as set forth in Section 2.11(g), any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term A Loan (or applicable portion thereof) will be automatically designated an Extended Term Loan. For purposes of this Agreement and the applicable Incremental other Loan Activation Notice. Nothing in this Section 2.27 shall Documents, if such Extending Lender is extending a Term A Loan (or portion thereof), such Extending Lender will be construed deemed to obligate any Lender to execute have an Incremental Term Loan Activation Noticehaving the terms of such Extended Term Loan.
(ch) On [Reserved].
(i) Notwithstanding anything to the contrary set forth in this Agreement or any Commitment Increase Date, in the event any Loans under the Facility are then outstandingother Loan Document (including this Section 2.20), (i) each relevant the aggregate amount of Extended Term Loans, will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan is required to be in any minimum amount or any minimum increment, (iii) except as set forth in the applicable Extension Offer, any Extending Lender may extend all or any portion of its Term A Loans pursuant to one or more Extension Offers (subject to applicable proration in the case of overparticipation) (including one or more extensions of any Extended Term Loan), (iv) there shall make available be no condition precedent to any Extension of any Term A Loan at any time or from time to time other than (A) delivery of notice to the Administrative Agent of such amounts Extension and the terms of the Extended Term Loans implemented thereby and (B) a representation by the Borrower in immediately available funds the applicable Incremental Assumption Agreement that the representations and warranties set forth in the Loan Documents are true and correct in all material respects as of the Administrative effective date of such Extension, with the same effect as though made on and as of such date, except to the extent any such representation or warranty expressly relates to an earlier date (in which case such representation or warranty was true and correct in all material respects as of such earlier date), (v) no consent of any Lender or Agent shall determine are necessary in order be required to causeeffectuate any Extension, after giving effect other than the consent of each Lender agreeing to such increased Extension with respect to one or more of its Loans and/or Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase(or a portion thereof), (iivi) the Company all Extended Term Loans and any relevant Subsidiary Borrower all obligations in respect thereof shall be deemed to have prepaid and reborrowed all outstanding Loans Obligations under this Agreement and the other Loan Documents that are secured on a pari passu basis with the Term A Loans and (iiivii) no Lender shall be required to consent to any extension of any Loan and/or Commitment (or any portion thereof), which consent shall be in each Lender’s sole discretion.
(j) Each Extension shall be consummated pursuant to procedures set forth in the Company and any relevant Subsidiary associated Extension Offer; provided that the Borrower shall pay cooperate with the Administrative Agent prior to the relevant Lenders the amountsmaking any Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, if anyincluding, payable under Section 2.22 as a result of such prepaymentwithout limitation, timing, rounding and other adjustments.
Appears in 1 contract
Samples: Term Loan Agreement (Anywhere Real Estate Group LLC)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated Borrower may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Loan Activation Notice signed by Amount available at the time such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Lenders and (ii) Term Loans and/or Incremental Revolving Facility Commitments, as the applicable Commitment Increase Datecase may be, in their own discretion; provided, that after giving effect to such Commitment Increase (including the incurrence of any each Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Revolving Facility Lender that is providing a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, commitment to make revolving credit loans (each, an “Incremental Loan”) shall be subject to the Company and/or approval of the applicable Subsidiary Borrowers from time Administrative Agent and, to time on or after the Commitment Increase Date specified in extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Commitment Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of such Incremental Lender specified in such Incremental Loan Activation Notice$5,000,000 and a minimum amount of $10,000,000, subject or equal to the terms of this Agreement and the applicable remaining Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase DateAmount or, in the event any Loans under the Facility are then outstandingeach case, (i) each relevant Incremental Lender shall make available to such lesser amount approved by the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increaseAgent), (ii) the Company and any relevant Subsidiary Borrower shall be deemed date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to have prepaid and reborrowed all outstanding Loans under this Agreement and become effective, (iii) in the Company case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and any relevant Subsidiary Borrower shall pay (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentTerm B Loans (“Other Term Loans”).
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed in the aggregate the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender and Incremental Term Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld) unless, in the case of any Incremental Term Lender, such Incremental Term Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated by Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested, (ii) the Company date on which such Incremental Term Loan Commitments and/or that additional lenders shall be added Incremental Revolving Facility Commitments are requested to this Agreement as Incremental Lenders with Commitments for become effective (the purpose of increasing the existing Commitments under the Facility (a “Commitment IncreaseIncreased Amount Date”) by executing and delivering (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term B Loan Commitments to make Term B Loans or commitments to make term loans with pricing, Yield, maturity date and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Activation Notice signed by Commitment of such Lenders or Incremental Term Lender and/or Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the respective Incremental Commitments Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, provided that the Yield in respect of any Other Term Loans secured on a pari passu basis with the Term B Loans made on or prior to the date that is eighteen (18) months after the Fifth Amendment Effective Date shall not exceed 0.50% or more above the Yield in respect of the Term B Loans or, if it does so exceed 0.50% or more of such Incremental Lenders and Yield in respect of the Term B Loans, the Applicable Margin in respect of the Term B Loans shall be increased so that the Yield in respect of such Other Term Loans is not greater than 0.50% above the Yield in respect of the Term B Loans, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans and (iv) from and after the effectiveness of the each Incremental Assumption Agreement, the associated Incremental Revolving Facility Commitments shall thereafter be Revolving Facility Commitments. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.20 unless, subject to Section 1.04: (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided that in the event that thecase of any Incremental Limited Condition Term Loan Commitments are used to finance a Permitted Business Acquisition, the condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be limited to customary “specified representations” and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, and the condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall be made by the Borrower at the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Commitment Increase Date; providedIncremental Term Lenders in the applicable Incremental Assumption Agreement, that junior to) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment Increase (including and/or Incremental Revolving Facility Commitments, the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall to be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay ensure that (i) all Incremental Term Loans under the Facility of (other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments than Other Term Loans) in the Facility form of additional Term B Loans, when originally made, are included in accordance with such Commitments after giving effect to such increaseeach Borrowing of outstanding Term B Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans or Term Benchmark Loans, as applicable, to ABR Loans reasonably required by the Company and any relevant Subsidiary Borrower shall be deemed Lenders to have prepaid and reborrowed all outstanding Loans under effect the foregoing.
(e) Notwithstanding anything to the contrary set forth in this Agreement and (iiiincluding Section 2.18(c) the Company and any relevant Subsidiary Borrower (which provisions shall pay not be applicable to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result clauses (e) through (l) of such prepayment.this
Appears in 1 contract
Samples: Amendment to Credit Agreement (Anywhere Real Estate Group LLC)
Incremental Commitments. (a) The Company may Borrower Representative may, on behalf of any Borrower, at any time or from time to time notify after the Closing Date, by notice to Administrative Agent that certain (an “Incremental Loan Request”), request (A) one or more new commitments which may be of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement same Class as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility any outstanding Term Loans (a “Commitment Term Loan Increase”) by executing and delivering to or a new Class of term loans (collectively with any Term Loan Increase, the Administrative Agent an “Incremental Loan Activation Notice signed by such Lenders Term Commitments”) and/or (B) one or such additional lenders and specifying more increases in the amount of the Revolving Commitments (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable a “Revolving Commitment Increase Date; providedIncrease” and, that after giving effect to such Commitment Increase (including the incurrence of collectively with any Incremental Loans on Term Commitments, the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, “Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees”), on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding not to exceed the sum of (A) the greater of (1) $63,000,000 and (2) 100% of Consolidated Adjusted EBITDA for the most recently completed Test Period (calculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the amount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the “Fixed Incremental Amount”) plus (B) an unlimited amount (the “Incremental Incurrence-Based Amount”), so long as on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Loans (assuming the full amount of any such Indebtedness in the form of a revolving credit facility is drawn) (without netting the cash proceeds of any borrowing under any such Incremental Term Loans or Revolving Commitment Increase not promptly applied for the specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the Total Net Leverage Ratio does not exceed 4.25:1.00 as of the last day of the most recently completed Test Period (calculated on a Pro Forma Basis) (this clause (B), the “Incremental Ratio Debt Basket”), plus (C) any voluntary prepayments and buybacks (limited to the actual amount of cash paid) of the Initial Term Loans and the Incremental Term Loans and voluntary prepayments of the Revolving Loans (to the extent accompanied by permanent commitment reductions thereto), payments utilizing the yank-a-bank provisions of the Credit Documents, in each case prior to such time other than any such voluntary prepayments (and commitment reductions), and buybacks to the extent financed with the proceeds of long term Indebtedness (other than any revolving Indebtedness) or any Specified Equity Contribution (this clause (C), the “Prepayment Amount”) (the sum of (A), (B), and (C) being referred to herein as the “Incremental Cap”), whereupon Administrative Agent shall promptly deliver a copy of such request to each of the Lenders; provided For purposes of the foregoing, (I) the Borrower Representative may elect to use the Incremental Incurrence-Based Amount prior to the Fixed Incremental Amount and the Prepayment Amount, and if the Fixed Incremental Amount and/or the Prepayment Amount, on the one hand, and the Incremental Incurrence-Based Amount, on the other hand, are each available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected to use the Incremental Incurrence-Based Amount first and (II) the Incremental Incurrence-Based Amount will be calculated without regard to any incurrence of Indebtedness under the Fixed Incremental Amount and/or Prepayment Amount concurrently with the incurrence of any amounts in reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Incremental Credit Facilities incurred other than under the Incremental Incurrence-Based Amount may be re-designated at any time, as the Borrower Representative may elect from time to time, as incurred under the Incremental Incurrence-Based Amount if the Borrowers meet the applicable ratio under the Incremental Incurrence-Based Amount at such time on a pro forma basis, at any time up subsequent to but not exceeding the amount of the Incremental Commitment incurrence of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Credit Facility are then outstanding, (i) each relevant Incremental Lender shall make available by written notice to the Administrative Agent on such amounts in immediately available funds date. (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount and/or the Prepayment Amount, as applicable, as of the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application date of such amounts to prepay Loans under redesignation by the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result amount of such prepayment.Indebtedness so redesignated). NAI-1537241654v2
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent that certain and the Issuing Bank (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated by the Company Incremental Term Loan Commitments and/or that additional lenders Incremental Revolving Facility Commitments being requested (which shall be added in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to this Agreement as the remaining Incremental Lenders Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments for are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the purpose of increasing the existing Commitments under the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility (a “Commitment Increase”) by executing Lender shall execute and delivering deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Activation Notice signed by Commitment of such Lenders or Incremental Term Lender and/or Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the respective Incremental Commitments Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans, as applicable, or (y) such Incremental Lenders and other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (iv) the Other Revolving Loans shall rank pari passu or junior in right of payment and of security with the Revolving Loans and except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date, and (vi) the Borrower shall have no senior unsecured bridge term loans or senior subordinated bridge terms loans outstanding at the time such Other Term Loans or Other Revolving Loans are incurred unless such bridge loans are repaid in full with the proceeds of the Other Term Loans or Other Revolving Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Commitment Increase Date; providedIncremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, that junior to) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment Increase (including the incurrence of any and/or Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Revolving Facility Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall Loans to be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay ensure that (i) all Incremental Term Loans under the Facility of (other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments than Other Term Loans) in the Facility form of additional Term B Loans, when originally made, are included in accordance with such Commitments after giving effect to such increaseeach Borrowing of outstanding Term B Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Company and any relevant Subsidiary Borrower shall be deemed Administrative Agent to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) effect the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrower shall have the right to request at any time and from time to time notify that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders, subject to the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to terms set forth in this Agreement as Incremental Lenders with Section 2.15) provide an increase in Revolving Commitments for the purpose of increasing the existing Commitments under the Facility (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, make Loans pursuant thereto; it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by executing the Borrower;
(ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender;
(iii) each Incremental Facility shall be denominated in U.S. Dollars;
(iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Loans, Permitted Pari Passu Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date;
(vi) the proceeds of all Incremental Facilities incurred by the Borrower may be used for any purpose not prohibited under this Agreement;
(vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment;
(viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and delivering optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity (in each case of the foregoing clauses (a) and (b), excluding for this purpose (x) interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of incurrence); (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding Term B-3-4 Loans by more than 0.50% per annum, the Applicable Margins for all then outstanding Term B-3-4 Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent an and may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Loan Activation Notice signed by such Lenders or such additional Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders and specifying (i) the respective Incremental Commitments of providing such Incremental Lenders Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-3-4 Loans, such terms (iiif favorable to the existing Lenders) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) automatically incorporated into the sum Credit Documents for the benefit of the Total Commitments then in effect (all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans);
(ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the 2023 Revolving Loans and the 2023 Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be 2023 Revolving Loans, including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the 2023 Revolving Loans, (B) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Applicable Commitment Fee Rate applicable to the 2023 Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the 2023 Revolving Loans, (D) after giving effect to such Revolving Commitment Increases, Revolving Commitments shall be reduced based on each Lender’s Pro Rata Percentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the 2023 Revolving Loans;
(x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans;
(xi) any Tranche of Additional/Replacement Revolving Commitments shall not exceed $2 billionrequire any scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the 2023 Revolving Loans and 2023 Revolving Commitments and shall be on substantially the same terms as those applicable to the 2023 Revolving Loans and 2023 Revolving Commitments (other than as set forth herein or otherwise reasonably acceptable to the Administrative Agent);
(xii) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall, to the extent secured, be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty and shall be secured by only the Collateral securing the Obligations hereunder;
(xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Revolving Commitment Increases, Additional/Replacement Revolving Commitments and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) and such Loans shall thereafter be deemed to be Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents; and
(xiv) all Incremental Commitment Requirements are satisfied.
(b) Each At the time of the provision of Incremental Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender that is a signatory or other Eligible Transferee which agrees to provide an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans Commitment (each, an “Incremental LoanLender”) shall execute and deliver to the Company and/or Administrative Agent an Incremental Amendment (which shall not require the applicable Subsidiary Borrowers from time to time on or after consent of any other Lender), with the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Lender specified in such Incremental Loan Activation Notice, subject Amendment shall have been delivered to the terms Administrative Agent, (x) all fees required to be paid in connection therewith at the time of this Agreement such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and the applicable Incremental Loan Activation Notice. Nothing (z) all other conditions set forth in this Section 2.27 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be construed deemed modified to obligate reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Lender Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to execute an such Incremental Loan Activation NoticeLender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) On any Commitment Increase DateNotwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the event any following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same maturity date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately; and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.07, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the Facility are then outstanding, respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application incurrence of such amounts new Incremental Term Loans pursuant to prepay Loans under Section 2.01(c)) on a pro rata basis. To the Facility extent the provisions of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and preceding clause (iii) the Company and any relevant Subsidiary Borrower shall pay require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result then outstanding Borrowings of SOFR Loans of such prepaymentTranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by the Administrative Agent of the Adjusted Term SOFR in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Commitments. (a) The Company may At any time and from time to time notify time, any Borrower may request that the Lenders or, at the option of any Borrower, other financial institutions or entities selected by a Borrower that would qualify as Eligible Assignees and are consented to by the Administrative Agent (which agrees not to withhold or delay such consent unreasonably) offer to enter into commitments to make and maintain Loans to the Borrowers and acquire participations in Letters of Credit under this Agreement. In the event that certain one or more of the Lenders designated or such other financial institutions or entities offer, in their sole discretion, to enter into such commitments, and such Lenders or financial institutions or entities and the Borrowers agree as to the amount of such commitments and the upfront fees (if any) to be payable by the Company and/or that additional lenders Borrowers in connection therewith, such Lenders or financial institutions or entities and the Borrowers shall be added execute and deliver a joinder agreement to this Agreement as in substantially the form of Exhibit E, which joinder agreement shall (i) set forth the amount of Incremental Lenders with Commitments for Commitment of such Lender or financial institution or entity and the purpose effective date of increasing such joinder agreement (the existing Commitments under “Joinder Effective Date”), which shall be no earlier than the Facility date three (a “Commitment Increase”3) by executing Business Days and delivering no more than five (5) Business Days after the date of delivery of the executed joinder agreement to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) include the applicable Commitment Increase Date; providedinformation required to be included in a Borrowing Request with respect to the Loan to be made pursuant to the following paragraph, that after giving effect if applicable. On any Joinder Effective Date for any joinder agreement, (i) if any Loans are then outstanding, the Lenders or financial institutions or other entities party to such joinder agreement shall make a Loan to the Borrowers in a principal amount equal to its Percentage (based on, and assuming that the aggregate Commitment Increase (including Amount is increased by, the incurrence Incremental Commitment set forth in such joinder agreement) of the Loans of the other Lenders then outstanding, the proceeds of which shall, notwithstanding any Incremental Loans other provision of this Agreement to the contrary, be applied by the Borrowers and the Administrative Agent to the optional prepayment on the applicable Joinder Effective Date of such Loans of the other Lenders then outstanding pursuant to Section 3.01(b), (ii) if there is any outstanding LC Exposure at such time, such Lender or financial institution or other entity shall automatically, and without any further action on its part, acquire from the other Lenders a participation in such LC Exposure equal to its Percentage (based on, and assuming that the aggregate Commitment Increase Date Amount is increased by, the Incremental Commitment set forth in such joinder agreement) of the aggregate LC Exposure at such time, and use the respective participations of proceeds thereof) (x) no Default or Event of Default the other Lenders in such LC Exposure shall be continuing reduced accordingly to each such Lender’s Percentage (based on, and assuming that the aggregate Commitment Amount is increased by, the Incremental Commitment set forth in such joinder agreement) of the aggregate LC Exposure at such time, and (yiii) the sum subject to compliance with clauses (i) and (ii) of the Total Commitments then in effect (includingthis paragraph, for the avoidance of doubt, Incremental Commitments) such Person shall not exceed $2 billion.
(b) Each become an Incremental Lender that is a signatory to an and Lender hereunder, holding the Incremental Loan Activation Notice severally agreesCommitment set forth in such joinder agreement, on and bound by the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) . Anything herein to the Company and/or contrary notwithstanding, (i) the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an minimum aggregate principal amount outstanding at of Incremental Commitments entered into pursuant to any time up such request shall be $20,000,000 or a larger multiple of $1,000,000 and (ii) the aggregate principal amount of all Incremental Commitments established after the Amendment No. 2 Closing Date shall not exceed $200,000,000. Except as otherwise expressly provided herein, the Incremental Commitments and the Loans made by Incremental Lenders shall have the same interest rate, participation and other fees, commitment reduction schedule (if any) and maturity date, and be subject to but not exceeding such conditions, as is applicable to all other Loans and Commitments hereunder and, shall be subject to, and entitled to the benefits of, the collateral security provided for herein and in the other Financing Documents on an equal and ratable basis with each other Obligation. Any prepayment of the Loans pursuant to this Section 2.01(b) shall be applied first, to the principal amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation NoticeLoans being maintained as Base Rate Loans and second, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date4.04, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application principal amount of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 being maintained as a result of such prepaymentLIBO Rate Loans.
Appears in 1 contract
Samples: Credit Agreement (Brookfield Infrastructure Partners L.P.)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Loan Commitments and/or additional Revolving Credit Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders or persons who will become Revolving Credit Lenders (which may include any existing Lender); provided that each such person shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Lenders designated by Incremental Term Loan Commitments and/or additional Revolving Credit Commitments being requested (which (i) in the Company and/or that additional lenders case of Incremental Term Loan Commitments, shall be added in minimum principal amounts of $20,000,000 or, if lower, equal to this Agreement as the remaining Incremental Lenders Amount, and (ii) in the case of additional Revolving Credit Commitments, shall be in minimum principal amounts of $5,000,000 or, if lower, equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or additional Revolving Credit Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche B-2 Term Loans or commitments to make term loans with Commitments for terms different from the purpose of increasing the existing Commitments under the Facility Tranche B-2 Term Loans (a “Commitment IncreaseOther Term Loans”).
(b) by executing The Borrower and delivering each Incremental Term Lender and/or additional Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Commitment of such Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Activation Notice signed by such Lenders or such additional lenders and specifying Commitments shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Majority Lenders, (i) the respective Incremental Commitments Other Term Loans shall rank pari passu or junior in right of such Incremental Lenders payment and of security with the Term Loans and (except as to pricing and amortization) shall have the same terms as the Term Loans, (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence final maturity date of any Incremental Other Term Loans shall be no earlier than the Tranche B-2 Term Loan Maturity Date, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Tranche B-2 Term Loans and (iv) if the initial yield on such Other Term Loans (as determined by the applicable Commitment Increase Date and use Administrative Agent to be equal to the sum of proceeds thereof) (x) no Default or Event of Default shall be continuing the margin above the Adjusted LIBO Rate on such Other Term Loans and (y) if such Other Term Loans are initially made at a discount or the sum Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Total Commitments Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Percentage then in effect (includingfor Eurodollar Term Loans of any Class, then the Applicable Percentage then in effect for Term Loans of such Class shall automatically be increased by the avoidance Yield Differential, effective upon the making of doubtthe Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Assumption Agreement, to make revolving credit loans (each, an “Incremental Loan”) this Agreement shall be deemed amended to the Company and/or extent (but only to the applicable Subsidiary Borrowers from time extent) necessary to time on or after reflect the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount existence and terms of the Incremental Commitment of such Incremental Lender specified in such Incremental Term Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation NoticeCommitments and/or additional Revolving Credit Commitments evidenced thereby.
(c) On any Notwithstanding the foregoing, no Incremental Term Loan Commitment Increase Date, in the event any Loans or additional Revolving Credit Commitment shall become effective under the Facility are then outstanding, this Section 2.24 unless (i) each relevant Incremental Lender on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Article IV shall make available to the Administrative Agent such amounts in immediately available funds as be satisfied and the Administrative Agent shall determine are necessary in order have received a certificate to cause, after giving that effect to dated such increased Commitments date and executed by a Responsible Officer of the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increaseBorrower, (ii) the Company Administrative Agent shall have received legal opinions, board resolutions and any relevant Subsidiary Borrower shall be deemed other closing certificates and documentation reasonably requested by the Administrative Agent and consistent with those delivered on the Restatement Effective Date under the Amendment Agreement and such additional documents and filings (including amendments to have prepaid the Mortgages and reborrowed all outstanding other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans, and/or additional Revolving Loans under this Agreement are secured by the Collateral ratably with the existing Term Loans and Revolving Loans and (iii) the Company Borrower would be in pro forma compliance with Section 6.02(a) and (b) after giving effect to (x) in the case of Incremental Term Loan Commitments, the Incremental Term Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, and (y) in the case of additional Revolving Credit Commitments, the Revolving Loans (if any) to be made thereunder on the date of effectiveness of such Commitment and the application of the proceeds therefrom on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any relevant Subsidiary Borrower and all action as may be reasonably necessary to ensure that all Incremental Term Loans, and/or additional Revolving Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Tranche B-2 Term Loans or Revolving Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall pay be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the relevant Lenders extent any Incremental Term Loans are not Other Term Loans, the amounts, if any, payable scheduled amortization payments under Section 2.22 as a result 2.11(a)(i) required to be made after the making of such prepaymentIncremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Samples: Credit Agreement (CGG Veritas)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Loan Commitments and, with the consent of the Administrative Agent that certain (not to be unreasonably withheld or delayed), Incremental Revolving Facility Commitments, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Loans in their own discretion. Such notice shall set forth (i) the amount of the Lenders designated by the Company and/or that additional lenders Incremental Commitments being requested (which shall be added in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to this Agreement as the then-remaining Incremental Lenders Amount), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of any Incremental Term Commitment, whether such Incremental Term Loan Commitments are to be Term A-1 Loan Commitments, Term A-2 Loan Commitments or commitments to make term loans with Commitments for pricing and/or other terms different from the purpose of increasing Term A-1 Loans and the existing Commitments under the Facility Term A-2 Loans (a “Commitment IncreaseOther Term Loans”) by executing and delivering (iv) in the case of any Incremental Revolving Facility Commitment, whether such Incremental Revolving Facility Commitments are to be additional Revolving Facility Commitments or commitments to make revolving loans with pricing and/or other terms different from the Revolving Facility Loans (“Other Revolving Loans”).
(b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed by Assumption Agreement and such Lenders or other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such additional lenders and specifying Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Loans; provided, that
(i) the respective Incremental Commitments final maturity date of such Incremental Lenders and any Other Term Loans shall be no earlier than the Term A-2 Facility Maturity Date;
(ii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date;
(iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term A-2 Loans;
(iv) Holdings and the Borrower shall use their commercially reasonable efforts to increase the face amount of the Title Policies with respect to the Jesup Facility to an amount that is at least equal to the aggregate amount of all Loans and unused Commitments under the Facilities, under all secured Refinancing Debt (without duplication of amounts under the Facilities), and under all Incremental Facilities then outstanding or requested, provided that (A) in no event shall the aggregate face amount of the Title Policies exceed $1,250,000,000, and (B) the Administrative Agent may, from time to time, and without any requirement for Lender consent, waive such requirement to increase the amount of such title insurance;
(v) the Leverage Ratio Toggle Test (tested only on the date of the initial incurrence of the applicable Commitment Increase DateIncremental Facility) shall be satisfied on a Pro Forma Basis (giving effect to the assumptions referred to in the last paragraph of the definition of “Incremental Amount”), provided that to the extent the proceeds of any Incremental Facility are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, compliance with the Leverage Ratio Toggle Test shall be calculated on a Pro Forma Basis at the time that the definitive documentation for such Permitted Business Acquisition or Material Investment is executed;
(vi) the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental Term Facility incurred within 12 months after the Closing Date will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Term A-2 Facility, unless the Applicable Margin with respect to the Term A-2 Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Term Facility and the all-in yield on the Term A-2 Facility minus 0.50% and the Applicable Margin with respect to the Term A-1 Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Term A-2 Facility; provided, that this clause (b)(vi) shall not apply if the applicable Incremental Term Facility ranks junior in right of security to the other Facilities or is initially unsecured, in each case, as provided in clause (viii) below,
(vii) the all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental Revolving Facility incurred at any time after giving effect the Closing Date and taking the form of a new tranche of revolving credit facilities will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Revolving Facility, unless the Applicable Margin with respect to the Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such Commitment Increase Incremental Revolving Facility and the all-in yield on the Revolving Facility minus 0.50%;
(including viii) Incremental Term Facilities may rank pari passu in right of security with, or junior in right of security to, the incurrence other Facilities (but shall in any case be secured (and, in the case of any Incremental Loans Term Facilities ranking junior in right of security to the other Facilities, shall be subject to customary intercreditor terms to be reasonably acceptable to the Administrative Agent and the Borrower), except during a Collateral Suspension Period, when Incremental Term Facilities shall be unsecured and shall be subject to substantially the same provisions with respect to a Collateral Reinstatement Event as the Facilities, in which case, such applicable Incremental Term Facility will be established as a separate facility from the then existing Term Loans; and
(ix) the other terms and documentation in respect of any Incremental Facility (including, without limitation, as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security), to the extent not consistent with the Facilities, shall be as agreed between the Borrower and the Lenders providing such Incremental Facility (but in any case subject to the specific limitations and requirements set forth above). Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby as provided for in Section 11.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of any Lender (other than the applicable Incremental Lenders), effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.15.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the condition set forth in paragraph (b) of Section 5.05 shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.02 and such additional customary documents and filings as the Administrative Agent may reasonably require to assure that the Incremental Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Commitment Increase Date Incremental Lenders in the applicable Incremental Assumption Agreement in accordance with clause (b)(viii) above, junior to) the existing Loans; and use of proceeds thereof) (xiii) no Default or Event of Default shall have occurred and be continuing or would result therefrom; provided, to the extent the proceeds of any Incremental Facility are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, (x) the absence of the existence of any Default or Event of Default (other than an Event of Default under Section 8.01(b), (c), (h) or (i)) shall not be a condition to the incurrence of such Incremental Facility and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, foregoing clause (i) each relevant Incremental Lender shall make available be limited, to the Administrative Agent extent agreed with the Incremental Lender(s) providing such amounts Incremental Facility, to customary “specified representations” and those representations of the seller or the target company (as applicable) included in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect acquisition agreement related to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay Permitted Business Acquisition that are material to the relevant interests of the Lenders and only to the amounts, if any, payable extent that Holdings or its applicable Subsidiary has the right to terminate its obligations under Section 2.22 such acquisition agreement as a result of a breach of such prepaymentrepresentations.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans and Other Revolving Loans) in the form of additional Term A-1 Loans, Term A-2 Loans or Revolving Facility Loans, as the case may be, when originally made, are included in each Borrowing of outstanding Term A-1 Loans, Term A-2 Loans or Revolving Facility Loans, as applicable, on a pro rata basis. The Borrower agrees that Section 3.05 shall apply to any conversion of Eurodollar Rate Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) The Company may Any Borrower may, by written notice to the Administrative Agent from time to time notify prior to the First Amendment Effective Date, request Incremental Term Loan Commitments and, with the consent of the Administrative Agent that certain (not to be unreasonably withheld or delayed), Incremental Revolving Facility Commitments, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Loans in their own discretion. Such notice shall set forth (i) the amount of the Lenders designated by the Company and/or that additional lenders Incremental Commitments being requested (which shall be added in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to this Agreement as the then-remaining Incremental Lenders Amount), (ii) the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of any Incremental Term Loan Commitment, whether such Incremental Term Loan Commitments are to be Term A-1 Loan Commitments, Term A-2 Loan Commitments or commitments to make term loans with Commitments for pricing and/or other terms different from the purpose of increasing Term A-1 Loans and the existing Commitments under the Facility Term A-2 Loans (a “Commitment IncreaseOther Term Loans”) by executing and delivering (iv) in the case of any Incremental Revolving Facility Commitment, whether such Incremental Revolving Facility Commitments are to be additional USD Revolving Facility Commitments, additional Multicurrency Revolving Facility Commitments or commitments to make revolving loans with pricing and/or other terms different from the Revolving Facility Loans (“Other Revolving Loans”).
(b) The applicable Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed by Assumption Agreement and such Lenders or other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such additional lenders and specifying Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Loans; provided, that
(i) the respective Incremental Commitments final maturity date of such Incremental Lenders and (ii) any Other Term Loans shall be no earlier than the applicable Commitment Increase Term A-2 Facility Maturity Date; provided, provided that after giving effect to such Commitment Increase at Holdings’ election (including the incurrence of any Incremental in its sole discretion) Other Term Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a final maturity date earlier than the Term A-2 Facility Maturity Date but no earlier than the Term A-1 Facility Maturity Date;
(ii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date;
(iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term A-2 Loans; provided that at Holdings’ election (in its sole discretion) Other Term Loans and/or Incremental Notes (pursuant to Section 2.15(e)(ii)(E)) in a combined aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term A-2 Loans but no shorter than the remaining weighted average life to maturity of the Term A-1 Loans;
(iv) Holdings and Products shall use their commercially reasonable efforts to increase the face amount of the Title Policies with respect to the Jesup Facility to an amount that is at least equal to the aggregate amount of all Loans and unused Commitments under the Facilities, under all secured Refinancing Debt (without duplication of amounts under the other Facilities), and under all Incremental Facilities (without duplication of amounts under the other Facilities) then outstanding or requested, provided that (A) in no event shall the aggregate face amount of the Title Policies exceed $1,250,000,000, and (B) the Administrative Agent may, from time to time, and without any time up requirement for Lender consent, waive such requirement to but not exceeding increase the amount of such title insurance;
(v) the Incremental Commitment Leverage Ratio Test (tested only on the date of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms initial incurrence of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 Facility) shall be construed satisfied on a Pro Forma Basis (giving effect to obligate the assumptions referred to in the last paragraph of the definition of “Incremental Amount”), provided that to the extent the proceeds of any Lender Incremental Facility (or Incremental Notes) are being used to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase finance a Permitted Business Acquisition or a Material Investment permitted hereunder, compliance with the Leverage Ratio Test shall be calculated on a Pro Forma Basis at the relevant Test Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to causeand if, after giving effect to such increased Commitments Permitted Business Acquisition or Material Investment and the application other transactions to be entered into in connection therewith on a Pro Forma Basis as if they had occurred at the beginning of the most recent Test Period ending prior to such amounts to prepay Loans under the Facility of other relevant LendersTest Date, the Loans under applicable Borrower could have incurred such Incremental Facility (or Incremental Notes) on such Test Date in compliance with the Facility to be held ratably by all Lenders with Commitments in Leverage Ratio Test, the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower Leverage Ratio Test shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and been complied with;
(iiivi) the Company all-in yield (including interest rate margins, any interest rate floors, original issue discount and any relevant Subsidiary Borrower shall pay upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result arranger of such prepayment.Incremental Facilities or its affiliates) applicable to any Incremental Term Facility incurred within 12 months after the Restatement Date will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Term A-2 Facility, unless the Applicable Margin with respect to the Term A-2 Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Term Facility and the all-in yield on the Term A-2 Facility minus 0.50% and the Applicable Margin with respect to the Term A-1 Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Term A-2 Facility; provided, that this clause (b)(vi) shall not apply if the applicable Incremental Term Facility ranks junior in right of security to the other Facilities or is initially unsecured, in each case, as provided in clause (viii) below,
(vii) (A) the all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental USD Revolving Facility incurred at any time after the Restatement Date and taking the form of a new tranche of revolving credit facilities will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the USD Revolving Facility, unless the Applicable Margin with respect to the USD Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental USD Revolving Facility and the all-in yield on the USD Revolving Facility minus 0.50% and the Applicable Margin with respect to the Multicurrency Revolving Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the USD Revolving Facility;
Appears in 1 contract
Samples: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Each Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing Lender on, and delivering subject to the Administrative Agent occurrence of, the First Amendment Effective Date hereby severally agrees to make Loans to the Borrower in a single Borrowing in an aggregate principal amount not to exceed such Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Lender’s Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans as set forth opposite its name on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billionAnnex I attached hereto.
(b) Each The Incremental Lender Lenders, the Lenders, the Facility Agent, the Security Trustee, the Borrower and the Guarantors agree that is a signatory this First Amendment effects the provisions of Section 2.21 of the Credit Agreement with respect to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice Commitments and shall constitute a Joinder Agreement pursuant to and in an aggregate principal amount outstanding at any time up to but not exceeding the amount accordance with Section 2.21 of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation NoticeCredit Agreement.
(c) Upon the incurrence of a Loan pursuant to this First Amendment, such Loan shall be subject to the interest rates (including the Margin) and terms, repayment, voluntary prepayment terms and mandatory prepayment terms applicable to the Loans as set forth in the Credit Agreement.
(d) On any Commitment Increase (and subject to the occurrence of) the First Amendment Effective Date, each Incremental Lender party hereto to the extent provided in this First Amendment and the event any Loans Credit Agreement, shall have the rights and obligations of a Lender thereunder and under the Facility are then outstanding, other applicable Loan Documents.
(e) The Borrower and each Guarantor acknowledges and agrees that (i) the Borrower shall be liable for all Obligations with respect to all Loans made to the Borrower pursuant to this First Amendment and (ii) all such Obligations (including all such Loans pursuant to this First Amendment) shall constitute Guaranteed Obligations and shall be entitled to the benefits of the Security Documents and the Guarantees.
(f) The Incremental Commitment of each relevant Incremental Lender shall make available to automatically terminate upon the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application making of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under pursuant to this First Amendment on the Facility First Amendment Effective Date.
(g) The proceeds of the Loans pursuant to this First Amendment shall be held ratably used by all Lenders with Commitments the Borrower solely for the purposes set forth in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company second recital of this First Amendment and any relevant Subsidiary Borrower shall amounts repaid, prepaid or cancelled may not be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentreborrowed.
Appears in 1 contract
Incremental Commitments. (a) The Company may from time to time notify After the Administrative Agent that certain of Closing Date, the Lenders designated Borrowers may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent from time to time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Loan Activation Notice signed Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under the Section 9.04, the applicable Issuing Banks and the applicable Swingline Lender (which approvals shall not be unreasonably withheld or delayed) unless such Incremental Revolving Lender is an existing Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments, the Canadian Revolving Facility Commitments, the U.K. Revolving Facility Commitments or the German Revolving Facility Commitments and shall be on the same terms (other than with respect to commitment, arrangement, structuring, ticking, upfront or similar fees paid to the Incremental Revolving Lenders) as the existing U.S. Revolving Facility Commitments, Canadian Revolving Facility Commitments, U.K. Revolving Facility Commitments or German Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility, Canadian Revolving Facility, U.K. Revolving Facility or German Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid), the Unused Line Fee and applicable letter of credit fees applicable to the existing Revolving Facility Commitments that is being increased by such Lenders or such additional lenders Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); provided, further, that the Canadian Revolving Facility Commitments shall not exceed $32,500,000, the U.K. Revolving Facility Commitments shall not exceed $47,500,000 and specifying the German Revolving Facility Commitments shall not exceed $100,000,000. Such notice shall set forth (i) the respective amount of the Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”) and (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments, Canadian Revolving Facility Commitments, U.K. Revolving Facility Commitments or German Revolving Facility Commitments.
(b) The Borrowers and each Incremental Revolving Lender shall execute and deliver an Incremental Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the U.S. Revolving Facility, the Canadian Revolving Facility, the U.K. Revolving Facility or the German Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by clause (c) below. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such Incremental Lenders effectiveness, the applicable conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the U.S. Borrower, and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase Administrative Agent shall have received customary documents and filings (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) amendments to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(cSecurity Documents) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall determine are necessary in order apply to causeany conversion of Term Rate Loans to Base Rate Loans, after giving Daily Resetting Term Rate Loans or Daily Simple RFR Loans reasonably required by the Administrative Agent to effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Magnera Corp)
Incremental Commitments. (a) The Company may from time Pursuant to time notify the Administrative Agent that certain and in accordance with Section 2.14 of the Lenders designated by Credit Agreement, effective as of the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility Fourth Amendment Effective Date (a “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that immediately after giving effect to the amendments to the Credit Agreement effected by Section I hereof), the Borrowers shall incur, and each Incremental Lender hereby agrees to provide, Incremental Commitments in an amount equal to the amount set forth next to such Commitment Increase (including Incremental Lender’s name in Annex A hereto and on identical terms to the incurrence of any Incremental Loans existing Revolving Credit Commitments under the Existing Credit Agreement on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billiondate hereof.
(b) Each The Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) Commitments shall be subject to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount provisions of the Incremental Commitment of such Incremental Lender specified in such Incremental Existing Credit Agreement and the other Loan Activation NoticeDocuments, as modified and supplemented by this Amendment. On the Fourth Amendment Effective Date (immediately after giving effect to the amendments to the Credit Agreement effected by Section I hereof), subject to the terms and conditions set forth herein, for all purposes of this Agreement the Loan Documents, (i) each Incremental Commitment shall constitute a “Revolving Credit Commitment” and the applicable (ii) each Incremental Loan Activation Notice. Nothing in this Section 2.27 Lender shall be construed to obligate any a “Lender” and a “Revolving Credit Lender” and shall have all the rights and obligations of an Existing Revolving Lender to execute an Incremental Loan Activation Notice(as defined below) holding a Revolving Credit Commitment.
(c) On any Commitment Increase Date, in the event any Loans under Fourth Amendment Effective Date (immediately after giving effect to the Facility are then outstandingamendments to the Credit Agreement effected by Section I hereof), (i) each relevant of the existing Revolving Credit Lenders immediately prior to the Fourth Amendment Effective Date (each, an “Existing Revolving Lender”) shall automatically and without further act be deemed to have assigned to each Incremental Lender, and each Incremental Lender shall make available automatically and without further act be deemed to have purchased and assumed, a portion of such Existing Revolving Lender’s participations under the Administrative Existing Credit Agreement in outstanding Letters of Credit, Swing Line Loans and Agent Advances, so that after giving effect to each such amounts deemed assignment and assumption and participation, the aggregate outstanding participations under the Credit Agreement in immediately available funds such Letters of Credit, Swing Line Loans and Agent Advances will be held by the Lenders (including each such Incremental Lender) ratably in accordance with their respective Revolving Credit Commitments (including Incremental Commitments) after giving effect to this Amendment and (ii) each of the Existing Revolving Lenders shall assign, and each Incremental Lender shall purchase and assume, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on the Fourth Amendment Effective Date as the Administrative Agent shall determine are be necessary in order to causethat, after giving effect to all such increased Commitments assignments and the application of such amounts to prepay Loans under the Facility of other relevant Lendersassumptions, the Revolving Credit Loans under the Facility to will be held by the Lenders (including each Incremental Lender) ratably by all Lenders with Commitments in the Facility in accordance with such their respective Revolving Credit Commitments after giving effect to such increase, this Amendment. The assignments and assumptions contemplated by clause (ii) of the Company and any relevant Subsidiary Borrower preceding sentence shall be deemed made through the Agent in accordance with the Agent’s instructions to have prepaid each Lender and reborrowed all outstanding Loans under this Agreement and (iii) each Lender hereby authorizes the Company and Agent to take any relevant Subsidiary Borrower shall pay actions as may be necessary or advisable to give effect to the relevant Lenders reallocation of Revolving Credit Loans contemplated thereby.
(d) As of the amountsFourth Amendment Effective Date, if anyafter giving effect to the incurrence of the Incremental Commitments hereunder, payable under Section 2.22 as a result the aggregate principal amount of such prepaymentRevolving Credit Commitments outstanding pursuant to the Credit Agreement shall be $225,000,000.
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify when: (w) no Default exists or would result after giving pro forma effect to such Incremental Term Borrowing, (x) all representations and warranties set forth in the Loan Documents shall be true and correct in all material respects immediately at the time of, and after giving effect to, such Incremental Term Borrowing, (y) an updated Library Value Report has been delivered to the Administrative Agent that certain at the time of such Incremental Term Borrowing and (z) at the time of, or after giving effect to such Incremental Term Borrowing (and any Investments made with such funds), the Borrower is in pro forma compliance with the financial covenants set forth in Article V (including the Term Borrowing Base); request Incremental Term Loan Commitments in an amount not to exceed the Incremental Term Loan Amount from one or more Incremental Term Loan Lenders, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall not be unreasonably withheld, conditioned or delayed) to the Administrative Agent. Such notice shall set forth: (A) the amount of the Lenders designated by the Company and/or that additional lenders Incremental Term Loan Commitments being requested (which shall be added in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to this the remaining Incremental Term Loan Amount), (B) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (C) whether such Incremental Term Loan Commitments are commitments to make Term Loans with identical terms to any existing Tranche of Term Loans or commitments to make term loans with terms different from any existing Tranche of Term Loans outstanding.
(b) The Borrower may, by written notice to the Administrative Agent from time to time when: (w) no Default exists or would result after giving pro forma effect to such Additional Revolving Loan Commitments and any making of the related Additional Revolving Loans, (x) all representations and warranties set forth in the Loan Documents shall be true and correct in all material respects immediately at the time of, and after giving effect to, Additional Revolving Loan Commitments and any making of the related Additional Revolving Loans, (y) an updated Revolving Borrowing Base Certificate has been delivered to the Administrative Agent at the time of such Additional Revolving Loan Commitments becoming effective and upon any making of any Additional Revolving Loans and (z) at the time of, or after giving effect to such Additional Revolving Loan Commitments and any making of the related Additional Revolving Loans, the Borrower is in pro forma compliance with the financial covenants set forth in Article V; request Additional Revolving Loan Commitments in an amount not to exceed the Additional Revolving Loan Commitment Amount from one or more Persons, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall not unreasonably withheld, conditioned or delayed) to the Administrative Agent and each Issuing Bank. Such notice shall set forth (A) the amount of the Additional Revolving Loan Commitments being requested (which shall be in minimum increments of $250,000 and a minimum amount of $2,500,000 or such lesser amount equal to the remaining Additional Revolving Loan Commitment Amount) and (B) the date on which such Additional Revolving Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice). The Borrower and each Person providing an Additional Revolving Loan Commitment shall execute and deliver to the Administrative Agent an Additional Revolving Loan Commitment Assumption Agreement and such other documentation as Incremental Lenders with the Administrative Agent shall reasonably specify to evidence the Additional Revolving Loan Commitment of each such Person. The terms and provisions of such Additional Revolving Loan Commitments for and Additional Revolving Loans made under such Additional Revolving Credit Commitments, shall be identical to those of the purpose then-existing Revolving Loan Commitments and Revolving Loans, respectively. The final maturity date of increasing the Additional Revolving Loans made under the Additional Revolving Loan Commitments shall be no earlier than the Revolving Termination Date and no scheduled mandatory commitment reduction other than those applicable to the existing Revolving Loans and Revolving Loan Commitments under shall be required prior to the Facility Revolving Termination Date.
(a “Commitment Increase”c) by executing The Borrower and delivering each Incremental Term Loan Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Assumption Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds other documentation as the Administrative Agent shall determine reasonably specify to evidence each Tranche of Incremental Term Loan Commitments of each Incremental Term Loan Lender. The terms of any Tranche of Incremental Term Loan Commitments (including the Effective Yield applicable to such Tranche) may differ from any existing Tranche of Term Loans outstanding in respect of interest rate, amortization and maturity, provided that, such Tranche of Incremental Term Loans shall have (i) an Initial Incremental Term Loan Maturity Date of no earlier than the then latest maturing Tranche of outstanding Term Loans, (ii) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then-outstanding Term Loans with the then longest Weighted Average Life to Maturity, (iii) the Incremental Term Loans shall not be secured by assets other than Collateral and not guaranteed by persons other than Guarantors and (iv) each Incremental Term Borrowing shall be secured on a no more senior than pari passu basis on the Collateral securing the Obligations; provided further, that if the Effective Yield for such Incremental Term Loans as of the date of incurrence of such Tranche of Incremental Term Loans exceeds the Effective Yield then applicable to any Tranche of then outstanding Term Loans by more than 0.25% per annum, the Applicable Margins for all then outstanding Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin”. Notwithstanding anything to the contrary contained above in this Section 2.20, the Incremental Term Loan Commitments provided pursuant to each Incremental Term Loan Commitment Assumption Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, C-1, C-2, etc.); provided that, with the consent of the Administrative Agent, the parties to a given Incremental Term Loan Assumption Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are necessary satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Term Loan Assumption Agreement shall have the same Scheduled Maturity Date and the same Applicable Margins of Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same amortization schedule as then remains with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each scheduled repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining scheduled principal payment of the respective Tranche proportionately; and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in order Section 2.10, such new Incremental Term Loans shall be added to cause(and form part of) each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans or Revolving Loans of the respective Tranche (after giving effect to the incurrence of such increased new Incremental Term Loans) on a pro rata basis.
(iv) To the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then-outstanding Borrowings of Eurodollar Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Rate Loans of such Tranche and which will end on the last day of such Interest Period). In connection therewith, it is hereby agreed that, to the extent the Incremental Term Loans are to be so added to the then-outstanding Borrowings of Term Loans of such Tranche which are maintained as Eurodollar Rate Loans, the Lenders that have made such Incremental Term Loans shall be entitled to receive from the Borrower such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the new Incremental Term Loans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and each Additional Revolving Loan Commitment Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Additional Revolving Loan Commitment Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby or the Additional Revolving Loan Commitments and Additional Revolving Loans evidenced thereby, and the application Administrative Agent and the Borrower may revise this Agreement and the other Loan Documents to evidence such amendments.
(e) Notwithstanding the foregoing, no Incremental Term Loan Commitment or additional Revolving Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such amounts effectiveness, the conditions set forth in Section 3.3(a) and (b) shall be satisfied, (ii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement or Additional Revolving Credit Commitment Assumption Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates requested by the Administrative Agent, (iii) to prepay Loans under the Facility extent reasonably necessary to maintain the continuing priority of the Lien of the Security Documents as security for the Obligations, as determined by the Administrative Agent (x) the applicable Loan Party to any Security Documents shall have entered into, and delivered to the Administrative Agent, at the direction of the Administrative Agent a modification or new Security Document in proper form for filing or recording in the relevant jurisdiction and in a form satisfactory to the Administrative Agent, (y) the Borrower shall have caused to be delivered to the Administrative Agent for the benefit of the Secured Parties an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of the Security Documents as security for the Obligations has not changed and confirming or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the Security Documents and (z) the Borrower shall have delivered, at the request of the Administrative Agent, to the Administrative Agent or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of the Security Documents as security for the Obligations.
(f) Upon the effectiveness of each Additional Revolving Loan Commitment, the Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Revolving Lenders, and incur additional Revolving Loans from certain other Revolving Lenders (including the additional Revolving Lenders), in each case to the extent necessary so that all of the Revolving Lenders participate in each outstanding Borrowing of Revolving Loans under pro rata on the Facility to be held ratably by all Lenders with basis of their respective Revolving Loan Commitments in the Facility in accordance with such Commitments (after giving effect to such increase, (ii) any increase in the Company aggregate Revolving Loan Commitments pursuant to this Section 2.20 and any relevant Subsidiary with the Borrower shall be deemed being obligated to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant respective Revolving Lenders any costs of the type referred to in Section 2.17 in connection with any such repayment or Borrowing (and in any event including any amounts, if anyas reasonably determined by the respective Lenders, payable under Section 2.22 as a result of such prepaymentto compensate them for funding any Revolving Loans during an existing Interest Period (rather than at the beginning at the respective Interest Period based on rates then applicable thereto)). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Cinedigm Corp.)
Incremental Commitments. (a) The Company may Borrowers may, by written notice to the Administrative Agent from time to time notify time, but in no event more than twice (provided that the Administrative Agent may, in its sole discretion, waive such restriction), request Incremental Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Commitments, as the case may be, in their own discretion; provided, that certain (i) each Incremental Lender shall be subject to the approval of the Lenders designated by the Company and/or that additional lenders Administrative Agent, each Swingline Lender (which approval shall not be unreasonably withheld or delayed) and each Borrower (which approval shall not be unreasonably withheld or delayed) unless such Incremental Lender is a Lender, and (ii) each Incremental Commitment shall be added to this Agreement on the same terms as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under and in all respects shall become a part of the Facility Commitments hereunder on such terms; provided, that, with the consent of the Borrowers, the Applicable Rate applicable to the then existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (1) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Amount), (2) the aggregate amount of Incremental Commitments, which shall not exceed the Incremental Amount, and (3) the date on which such Incremental Commitments are requested to become effective (the “Commitment IncreaseIncreased Amount Date”).
(b) by executing The Borrowers and delivering each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such Lenders or such additional lenders deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and specifying furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.22 unless (i) on the respective Incremental Commitments date of such Incremental Lenders effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of each of the Borrowers, and (ii) the applicable Commitment Increase Date; providedAdministrative Agent shall have received legal opinions, that after giving effect board resolutions and other closing certificates and documentation to such Commitment Increase (including the incurrence of any Incremental Loans extent reasonably required by the Administrative Agent, in each case consistent with those delivered on the applicable Commitment Increase Effective Date under Section 4.01 and use of proceeds thereof) (x) no Default or Event of Default shall be continuing such additional documents and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds filings as the Administrative Agent shall determine may reasonably require to assure that the Revolving Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in order to causerespect of Incremental Commitments, after giving effect to such increased Commitments and the application when originally made, are included in each Borrowing of such amounts to prepay outstanding Revolving Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as on a result of such prepaymentpro rata basis.
Appears in 1 contract
Incremental Commitments. (a) The Company may from At any time prior to time notify the repayment in full of all Loans and the termination of all Commitments hereunder, the Borrower may, by written notice to the Administrative Agent (which the Administrative Agent shall promptly furnish to each Lender), request that certain one or more Persons (which may include the then-existing Lenders; provided that no Lender shall be obligated to provide such Incremental Commitments and may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loan Commitments under this paragraph (a), it being understood that if such Incremental Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of the Lenders designated an assignment to such Person (such consent not to be unreasonably withheld). The minimum aggregate principal amount of Incremental Commitments established pursuant to any Incremental Amendment shall be $10,000,000 (or such lesser amount as may be agreed by the Company and/or that additional lenders Administrative Agent). In no event shall the aggregate amount of any Incremental Commitments established at any time pursuant to this clause (a) exceed the Maximum Incremental Amount at such time. Incremental Commitments shall be added established pursuant to an amendment, supplement or amendment and restatement (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Person providing an Incremental Commitment and the Administrative Agent. Each Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to (x) effect the provisions of this Section 2.17 or (y) to the extent the terms and conditions of the Incremental Commitments are more favorable to the Lenders than comparable terms existing in the Loan Documents, to bring the terms and conditions of the existing Loans in line with the terms and conditions of the Incremental Loans necessary to achieve fungibility. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in clauses (a) and (c) of Section 4.02 shall have been satisfied and (ii) the Administrative Agent shall have received documents from the Borrower substantially consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of increasing financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as (1) as of the existing Commitments date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (2) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the Facility representations and warranties set forth in Article III shall be true and correct in all material respects (a or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Commitment Increase”Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by executing materiality) immediately prior to, and delivering immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment.
(b) The Loan Parties and each Incremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed by Amendment and such Lenders or such additional lenders and specifying (i) other documentation as the respective Administrative Agent shall reasonably specify to evidence the Incremental Commitments of such Incremental Term Loan Lender and/or Incremental Revolving Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Credit Commitments; provided that:
(i) any commitments to make Incremental Term Loans in the form of additional Initial Term B Loans shall have the same terms as the Initial Term B Loans, and shall form part of the same Class of Initial Term B Loans, (x) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term B Loans (“Other Incremental Term Loans”) shall be subject to compliance with clauses (ii) through (vi) below,
(ii) the Other Incremental Term Loans and Incremental Revolving Loans incurred pursuant to clause (a) of this Section 2.17 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Maturity Date applicable to Initial Term B Loans, and, except as to pricing, amortization and final maturity date (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), the Other Incremental Term Loans shall have terms, to the extent not consistent with the Initial Term B Loans or otherwise permitted under this Section 2.17(b), that are (x) not more favorable, taken as a whole, to the Lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans or (y) otherwise reasonably acceptable to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term B Loans,
(v) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Credit Commitments,
(vi) Other Incremental Term Loans and Incremental Revolving Credit Commitments shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral,
(vii) the interest rate margins, fees and (subject to clauses (iii) and (iv) above with respect to Other Incremental Term Loans) amortization schedule applicable to the Loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders or Incremental Term Loan Lenders; provided that in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower prior to the first anniversary of the Effective Date under any Incremental Term Loan Commitment is higher than the All-in Yield for the outstanding Initial Term B Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the Applicable Margins for the Initial Term B Loans at the time such Incremental Term Loans are incurred shall be increased to the extent necessary so that the All-in Yield for the Initial Term B Loans is equal to the All-in Yield for such Incremental Term Loans minus 50 basis points, and
(viii) to the extent agreed to by the relevant Lenders and the Borrower, any Incremental Amendment with respect to Incremental Revolving Commitments may (i) include customary provisions with respect to swingline loans and letters of credit to be issued pursuant to such Incremental Revolving Commitments (and customary provisions with respect to Defaulting Lenders) and/or (ii) include one or more financial maintenance covenants that are solely for the benefit of the Lenders with such Incremental Revolving Commitments and that may be amended or waived in any manner solely by Lenders with a percentage of such Incremental Revolving Commitments specified in such Incremental Amendment and a breach of which would allow such Lenders to terminate such a percentage of such Incremental Revolving Commitments specified in such Incremental Amendment to terminate such Incremental Revolving Commitments and declare all amounts owing thereunder to be immediately due and payable (and any such breach of such financial maintenance covenants shall not constitute an Event of Default for purposes of any Term Loans unless and until such Incremental Revolving Commitments were terminated as a result thereof), with all such provisions described above to be reasonably satisfactory to the Administrative Agent. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.17 shall be deemed “Loan Documents” hereunder. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding Initial Term B Loans on a pro rata basis, and (ii) all Revolving Loans in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence Class of any Incremental outstanding Revolving Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) pro rata basis. Notwithstanding anything to the Company and/or the applicable Subsidiary Borrowers from time to time on contrary, this Section 2.17 shall supersede any provisions in Section 2.15 or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject Section 9.02 to the terms of this Agreement and the applicable Incremental Loan Activation Noticecontrary. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice2.18. [Reserved].
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment.
Appears in 1 contract
Samples: Credit Agreement (Integrated Device Technology Inc)
Incremental Commitments. (a) The Company may Borrower shall have the right, at any time and from time to time notify after the Restatement Effective Date by written notice to and in consultation with the Administrative Agent that certain of Agent, to request (i) an increase in the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with aggregate Commitments for the purpose of increasing the existing Commitments under the Facility (each such requested increase, a “Revolving Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and ), and/or (ii) one or more term loan commitments (each such requested term loan commitment, a “Term Loan Commitment” and, together with any Revolving Commitment Increase, the applicable “Incremental Commitments”) to make one or more term loans (each a “Term Loan”) by having one or more existing Lenders increase their respective Commitments then in effect and/or provide a Term Loan Commitment Increase Date(each, an “Increasing Lender”), by adding as a Lender with a new Commitment and/or Term Loan Commitment hereunder one or more Persons that are not already Lenders (each, an “Additional Lender” and, together with each Increasing Lender, the “Incremental Lenders”), or a combination thereof; providedprovided that (A) any such request for an Incremental Commitment shall be in a minimum amount of $25,000,000, that (B) immediately after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on Commitment, (y) the applicable Commitment Increase Date aggregate Commitments plus Incremental Commitments shall not exceed $400,000,000 and use (z) the aggregate of proceeds thereof) all Incremental Commitments effected shall not exceed $150,000,000, (xC) no Default or Event of Default shall have occurred and be continuing on the applicable Incremental Commitment Effective Date (as hereinafter defined) or shall result from any Incremental Commitment, (D) immediately after giving effect to any Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof) the Borrower shall be in compliance with the financial covenants contained in ARTICLE VII, and (yE) the sum Borrower shall give the existing Lenders the right of first refusal for participating in any such Incremental Commitment by providing such notice to the Administrative Agent ten (10) Business Days before making a request to any Person that is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in such requested Incremental Commitment if it provides written notice of its election to participate within ten (10) Business Days of the Total Commitments then Administrative Agent’s receipt of such notice. Such notice from the Borrower shall specify the requested amount of the Incremental Commitment. No Lender shall have any obligation to become an Increasing Lender. Any fees paid by the Borrower for an Incremental Commitment to an Incremental Lender, the Administrative Agent or Xxxxx Fargo, as Arranger, shall be for their own account and shall be in effect (includingan amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion. Nothing contained in this Section 2.21 shall be construed to obligate the Borrower to pay any fee for an Incremental Commitment to an Incremental Lender, the avoidance of doubt, Incremental Commitments) shall not exceed $2 billionAdministrative Agent or either Arranger.
(b) Revolving Commitment Increases, if any, shall have the same terms (other than upfront fees) as the existing Commitments and be effected as set forth in Section 2.21(f). Term Loan Commitments, if any, shall have terms and conditions acceptable to the Administrative Agent, the Incremental Lenders making such Term Loan Commitments and the Borrower (such terms and conditions to be set forth in an amendment to this Agreement effective as of the Incremental Commitment Effective Date), provided that the Term Loans made pursuant to such Term Loan Commitments (i) shall not mature earlier than the Maturity Date, and (ii) will constitute Obligations of the Borrower on a pari passu basis with any Revolving Loans
(c) Each Additional Lender must be approved in writing by the Administrative Agent and the Issuing Lenders. The Borrower and each Additional Lender shall execute a joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent and the Borrower may reasonably require including without limitation the documentation for the amendment referred to in Section 2.21(e)(i)(A), all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment adjustments referred to in Section 2.21(f).
(d) If Incremental Commitments are provided in accordance with this Section 2.21, the Borrower (in consultation with the Administrative Agent) and each Incremental Lender that is shall agree upon the effective date (the “Incremental Commitment Effective Date,” which shall be a signatory Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Incremental Commitment Effective Date. For clarity, no Lender other than an Incremental Loan Activation Notice severally agreesLender must execute any joinder or amendment in connection with an Incremental Commitment.
(e) Notwithstanding anything set forth in this Section 2.21 to the contrary, the Borrower shall not incur any Revolving Loans or Term Loans pursuant to any Incremental Commitment (and no Incremental Commitment shall be effective) unless the conditions set forth in Section 2.21(a) as well as the following conditions precedent are satisfied on the applicable Incremental Commitment Effective Date:
(i) The Administrative Agent shall have received the following, each dated the Incremental Commitment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) an amendment to this Agreement signed by the Incremental Lenders setting forth the terms and conditions of this Agreementthe Term Loan Commitments, if any, and the reallocation of Commitments and the allocation of Term Loan Commitments, as applicable, referred to make revolving credit loans in Section 2.21(f), together with all other documentation required by the Administrative Agent pursuant to Section 2.21(c);
(eachB) an instrument, duly executed by the Borrower and each other Subsidiary Guarantor, if any, acknowledging and reaffirming its obligations under the Subsidiary Guaranty, and the other Credit Documents to which it is a party;
(C) a certificate of the secretary or an “Incremental Loan”assistant secretary of the Borrower and each Subsidiary Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice Commitment;
(D) a certificate of a Financial Officer of the Borrower, certifying that (x) all representations and warranties of the Borrower and the Subsidiary Guarantors contained in an aggregate principal amount outstanding at any time up to but not exceeding this Agreement and the amount other Credit Documents are true and correct in all material respects as of the Incremental Commitment Effective Date (except to the extent such representation and warranty is qualified by materiality or reference to Material Adverse Effect or Material Adverse Change, in which case, such representation and warranty shall be true and correct in all respects or except to the extent that such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such Incremental Lender specified in date), (y) immediately after giving effect to such Incremental Loan Activation Notice, subject to the terms of this Agreement Commitment (including any Borrowings in connection therewith and the applicable application of the proceeds thereof), the Borrower is in compliance with the financial covenants contained in ARTICLE VII, and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Incremental Loan Activation Notice. Nothing Commitment (including any Borrowings in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.connection therewith and the application of the proceeds thereof); and
(cE) On any Commitment Increase Datean opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available addressed to the Administrative Agent and the Lenders, together with such amounts in immediately available funds other documents, instruments and certificates as the Administrative Agent shall determine are necessary in order have reasonably requested.
(f) For Revolving Commitment Increases, on the Incremental Commitment Effective Date, (i) the aggregate principal outstanding amount of the Revolving Loans (the “Initial Loans”) immediately prior to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility Incremental Commitment shall be deemed to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increaserepaid, (ii) immediately after the Company and any relevant Subsidiary effectiveness of the Incremental Commitment, the Borrower shall be deemed to have prepaid made new Borrowings of Revolving Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and reborrowed all outstanding Loans under this Agreement of the Types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.2(b), (iii) the Company and any relevant Subsidiary Borrower each Lender shall pay to the relevant Lenders Administrative Agent in immediately available funds an amount equal to the amountsdifference, if anypositive, payable under Section 2.22 as a result between (y) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of the Subsequent Borrowings and (z) such Lender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such prepaymentfunds equal to the difference, if positive, between (y) such Xxxxxx’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans and (z) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of the amount of the Subsequent Borrowings, (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments (calculated after giving effect to the Incremental Commitment), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Lenders entitled thereto, and (vii) Schedule 1.1 shall be amended to reflect the Commitments of all Lenders after giving effect to the Incremental Commitment. The deemed payments made pursuant to clause (i) above in respect of each SOFR Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.19 if the Incremental Commitment Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Incremental Commitments. (a) The Company Borrowers may, by written notice to the Agent on up to two (2) occasions, request incremental increases in the Maximum Revolving Credit Amount in an amount not to exceed the aggregate amount of $25,000,000 from one or more additional Lenders (which may from time include any existing Lender) willing to time notify provide such incremental Revolving Commitments, in their sole discretion; provided, that each additional Lender shall be subject to the Administrative Agent that certain approval of the Lenders designated by the Company and/or that additional lenders Agent (which approval shall not be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders unreasonably withheld or such additional lenders and specifying delayed). Such notice shall set forth (i) the respective Incremental Commitments amount of such Incremental Lenders the increase in the Maximum Revolving Credit Amount being requested, which shall be not less than $10,000,000, and (ii) the date on which such incremental increase in the Maximum Revolving Credit Amount is to become effective (the "Increased Amount Date"). The Borrowers shall be responsible for all reasonable, out of pocket, fees and expenses in connection with such increase, and, to the extent agreed in writing by the Borrowers pursuant to Section 2.18(b), syndication expenses and fees paid to Lenders providing the additional Revolving Commitments.
(b) The Borrowers and each new Lender shall execute and deliver to the Agent such documentation as the Agent shall reasonably specify to evidence the commitment of such new increase in the Maximum Revolving Credit Amount. Each such documentation shall specify the terms of the applicable Commitment Increase Dateincremental Revolving Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Revolving Commitments shall thereafter be Revolving Commitments with the same terms as the Revolving Commitments (including as to pricing and maturity). Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Revolving Commitments evidenced thereby (including adjusting the Commitment Percentages), and new Revolving Credit Notes shall be issued and the Borrowers shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Maximum Revolving Credit Amount, in each case without the consent of the Lenders other than those Lenders with incremental Revolving Commitments. The fees payable by the Borrowers upon any such incremental Revolving Commitments shall be agreed upon by the Agent, the Lenders with incremental Revolving Commitments and the Borrowers at the time of such increase. Notwithstanding the forgoing, nothing in this Section 2.18 shall constitute or be deemed to constitute an agreement by any Lender to increase its Commitment Percentage hereunder.
(c) Notwithstanding the foregoing, no incremental Revolving Commitment shall become effective under this Section 2.18 unless (i) on the date of such effectiveness, the conditions set forth in Section 3.2 shall be satisfied and the Agent shall have received a certificate to that effect dated such date and executed by a duly authorized officer of the Borrowers, (ii) the Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Agent, consistent with those delivered on the Closing Date under Section 3.1 and such additional customary documents and filings as the Agent may reasonably require, and (iii) the Borrowers shall be in pro forma compliance with the covenants set forth in Section 7 after giving effect to such Commitment Increase (including incremental Revolving Commitments, the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall to be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to prepay Loans under ensure that all Revolving Credit Advances in respect of incremental Revolving Commitments, when originally made, are included in such aggregate Revolving Credit Advance of outstanding Revolving Credit Advances on a pro rata basis. The Borrowers agree that Section 2.18 shall apply to any conversion of any Loan bearing interest at the Facility of other relevant Lenders, Applicable LIBOR Rate to a Loan bearing interest at the Loans under Applicable Base Rate reasonably required by the Facility Lenders to be held ratably by all Lenders with Commitments in effect the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Gerber Scientific Inc)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify after the Closing Date, and prior to the Revolving Facility Loan Maturity Date, request that the Incremental Amount be provided by one or more Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated by the Company and/or that additional lenders Incremental Revolving Facility Commitments being requested (which shall be added in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to this Agreement as the remaining Incremental Lenders with Amount), (ii) the date on which such Incremental Revolving Facility Commitments for are requested to become effective (the purpose of increasing the existing Commitments under the Facility (a “Commitment IncreaseIncreased Amount Date”) by executing and delivering (iii) whether such Incremental Revolving Loan Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing terms different from the Revolving Facility Loans (“Other Revolving Loans”).
(b) The Borrower and each Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed by Assumption Agreement and such Lenders or other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Revolving Facility Commitments; provided, that (i) the respective Incremental Commitments Other Revolving Loans shall have the same guarantees as and rank pari passu or junior in right of payment and of security with the Revolving Facility Loans and, except as to pricing and final maturity date, shall have (x) the same terms as the Revolving Facility Loans, as applicable, and (y) intercreditor arrangements and such Incremental Lenders other terms as shall be reasonably satisfactory to the Administrative Agent and (ii) the applicable Commitment Increase final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Loan Maturity Date; provided. Each of the parties hereto hereby agrees that, that after giving effect to such Commitment Increase (including upon the incurrence effectiveness of any Incremental Loans Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the applicable Commitment Increase Date date of such effectiveness, both before and use of proceeds thereof) after such effectiveness, (x) there is no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 Borrower shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increasePro Forma Compliance, (ii) the Company Administrative Agent shall have received a certificate to that effect dated such date and any relevant Subsidiary executed by a Responsible Officer of the Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement containing calculations in reasonable detail demonstrating compliance with the requirement contained in preceding subclause (i)(y), and (iii) the Company Administrative Agent shall have received customary legal opinions, board resolutions and any other customary closing certificates and documentation as required by the relevant Subsidiary Borrower shall pay Incremental Assumption Agreement and, to the relevant Lenders extent required by the amountsAdministrative Agent, if any, payable consistent with those delivered on the Original Closing Date under Section 2.22 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Revolving Facility Loans in respect of the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a result pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of such prepaymentEurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
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Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Lender shall be subject to the approval of the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders (which approval shall not be unreasonably withheld or delayed) unless such Incremental Lender is a Lender, and (ii) each Incremental Commitment shall be added to this Agreement on the same terms as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under and in all respects shall become a part of the Facility Commitments hereunder on such terms; provided, that, the Applicable Margin and Commitment Fee Rate applicable to the then-existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Commitments, which shall not exceed the Incremental Amount, and (iii) the date on which such Incremental Commitments are requested to become effective (the “Commitment IncreaseIncreased Amount Date”).
(b) by executing The Borrower and delivering each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed Assumption Agreement. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such Lenders or such additional lenders deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and specifying furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.17 unless (i) on the respective Incremental Commitments date of such Incremental Lenders effectiveness, the conditions set forth in paragraphs (c) and (d) of Section 4.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, and (ii) the applicable Commitment Increase Date; providedAdministrative Agent shall have received legal opinions, that after giving effect board resolutions and other closing certificates and documentation to such Commitment Increase (including the incurrence of any Incremental Loans extent reasonably required by the Administrative Agent, in each case consistent with those delivered on the applicable Commitment Increase Closing Date under Section 4.1 and use of proceeds thereof) (x) no Default or Event of Default shall be continuing such additional documents and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds filings as the Administrative Agent shall determine may reasonably require to assure that the Revolving Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in order to causerespect of Incremental Commitments, after giving effect to such increased Commitments and the application when originally made, are included in each Borrowing of such amounts to prepay outstanding Revolving Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as on a result of such prepaymentpro rata basis.
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Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated Borrowers may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent on four occasions during the period from the Closing Date to February 1, 2016, request incremental Commitments in an amount not less than $25,000,000 per request and not more than $200,000,000 in the aggregate, together with any increase to the Revolving Committed Amount (under and as defined in the Revolving Credit Agreement) and incremental term loans under the Term Loan A Agreement (such that the Committed Amount after such increase shall never exceed $450,000,000 minus (x) any increase to the Revolving Committed Amount and (y) any incremental term loans under the Term Loan A Agreement)(the “Incremental Limit”) from one or more additional Lenders (which may include any existing Lender, each, a “New Term Loan Activation Notice signed by Lender”) willing to provide such Lenders incremental Commitments in their own discretion; provided, that each New Term Loan Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such New Term Loan Lender is a Lender or such additional lenders and specifying an Affiliate of a Lender. Such notice shall set forth (i) the respective Incremental amount of the incremental Commitments of such Incremental Lenders being requested, and (ii) the applicable date on which such incremental Commitments are requested to become effective (the “Increased Amount Date”). On any Increased Amount Date on which any such incremental Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to the Borrowers (a “New Term Loan”) in an amount equal to its incremental Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to such incremental Commitment Increase Date; providedand the New Term Loans made pursuant thereto. The terms and provisions of the New Term Loans and the incremental Commitments shall be identical to the existing Loans.
(b) The Borrowers and each New Term Loan Lender shall execute and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence the incremental Commitment of such New Term Loan Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Credit Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments and New Term Loans evidenced thereby (including adjusting the Commitment Percentages), and new Notes shall be issued and the Borrowers shall make such borrowings without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by the Borrowers upon any such incremental Commitments shall be agreed upon by the Administrative Agent, the New Term Loan Lenders and the Borrowers at the time of such increase. Notwithstanding the foregoing, nothing in this Section 2.7 shall constitute or be deemed to constitute an agreement by any Lender to increase its Commitment hereunder.
(c) Notwithstanding the foregoing, no incremental Commitment shall become effective under this Section 2.7 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.2 shall be satisfied assuming a Loan were then being made and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a financial officer of BRT, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Effective Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrowers shall be in pro forma compliance with the covenants set forth in Section 7.2 after giving effect to such Commitment Increase (including incremental Commitments, the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall to be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay Loans under the Facility ensure that all New Term Loans, when originally made, are included in each borrowing of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as on a result of such prepaymentpro rata basis.
Appears in 1 contract
Samples: Term Loan B Agreement (Brandywine Operating Partnership, L.P.)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated Borrowers may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent on one occasion during the period from the Closing Date to December 31, 2007, request incremental Commitments in an amount not to exceed the aggregate amount of $50,000,000 (the “Incremental Loan Activation Notice signed by Limit”) from one or more additional Lenders (which may include any existing Lender) willing to provide such Lenders incremental Loans in their own discretion; provided, that each incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such incremental Lender is a Lender or such additional lenders and specifying an Affiliate of a Lender. Such notice shall set forth (i) the respective Incremental amount of the incremental Commitments of such Incremental Lenders being requested, and (ii) the applicable date on which such incremental Commitments are requested to become effective (the “Increased Amount Date”).
(b) The Borrower and each incremental Lender shall execute and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence the incremental Commitment Increase Date; providedof such incremental Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Commitments and incremental Loans evidenced thereby (including adjusting the Commitment Percentages), and new Notes shall be issued and the Borrower shall make such borrowings without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by the Borrower upon any such incremental Commitments shall be agreed upon by the Administrative Agent, the Lenders with incremental Commitments and the Borrower at the time of such increase. Notwithstanding the foregoing, nothing in this Section 2.7 shall constitute or be deemed to constitute an agreement by any Lender to increase its Commitments hereunder.
(c) Notwithstanding the foregoing, no incremental Commitment shall become effective under this Section 2.7 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a financial officer of BRT, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the Effective Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrowers shall be in pro forma compliance with the covenants set forth in Section 7.2 after giving effect to such Commitment Increase (including incremental Commitments, the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall to be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay Loans under the Facility ensure that all incremental Loans, when originally made, are included in each borrowing of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as on a result of such prepaymentpro rata basis.
Appears in 1 contract
Incremental Commitments. (a) The Company may may, by written notice to the General Administrative Agent from time to time notify time, request that the Administrative Agent total US/UK Commitments be increased; provided that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments aggregate amount of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) increase shall not exceed $2 billion150,000,000. Such notice shall set forth the amount of the requested increase in the US/UK Commitments (which shall be in minimum increments of $10,000,000) and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Termination Date), and shall offer each US/UK Lender the opportunity to increase its US/UK Commitment by its Pro Rata Percentage of the proposed increased amount. The General Administrative Agent shall promptly deliver notice of the Company’s requested increase in the US/UK Commitments to each US/UK Lender. Each US/UK Lender shall, by notice to the General Administrative Agent given not more than 10 days after the date of the General Administrative Agent’s notice, either agree to increase its US/UK Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its US/UK Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its US/UK Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the General Administrative Agent shall have delivered such notice, the US/UK Lenders shall have agreed pursuant to the preceding sentence to increase their US/UK Commitments by an aggregate amount less than the increase in the US/UK Commitments requested by the Company, the Company may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend US/UK Commitments or increase their existing US/UK Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, no Person shall become a Lender and no Lender’s US/UK Commitment shall increase pursuant to this subsection 6.18 without the prior written consent of the General Administrative Agent (which shall not be unreasonably withheld). The US/UK Borrowers and each Augmenting Lender shall execute all such documentation as the General Administrative Agent shall reasonably specify to evidence its US/UK Commitment and/or its status as a Lender hereunder. Any increase in the US/UK Commitments may be made in an amount which is less than the increase requested by the Company if the Company is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment parties hereto hereby agrees that the General Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the US/UK Commitments pursuant to this subsection 6.18, the outstanding US/UK Loans (if any) are held by the US/UK Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of such Incremental Lender specified the General Administrative Agent (i) by requiring the outstanding US/UK Loans to be prepaid with the proceeds of new US/UK Loans, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding US/UK Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in such Incremental Loan Activation Notice, this paragraph (b) shall be subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Noticesubsection 6.14, but otherwise without premium or penalty.
(c) On any Commitment Increase DateNotwithstanding the foregoing, no increase in the event any Loans total US/UK Commitments shall become effective under the Facility are then outstandingthis subsection 6.18 unless, (i) each relevant Incremental Lender on the date of such increase, the conditions set forth in subsection 8.2 shall make available to be satisfied and the Administrative Agent such amounts in immediately available funds as the General Administrative Agent shall determine are necessary in order have received a certificate to cause, after giving that effect to dated such increased Commitments date and executed by the application chief financial officer of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, Company and (ii) the Company General Administrative Agent shall have received (with sufficient copies for each of the Increasing Lenders and any relevant Subsidiary Borrower Augmenting Lenders) such customary closing documentation as the General Administrative Agent shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentreasonably requested.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Reebok International LTD)
Incremental Commitments. (a) The Company Borrowers may, by written notice to the Agent on up to two (2) occasions, request incremental increases in the Maximum Revolving Credit Amount in an amount not to exceed the aggregate amount of $25,000,000 from one or more additional Lenders (which may from time include any existing Lender) willing to time notify provide such incremental Revolving Commitments, in their sole discretion; provided, that each additional Lender shall be subject to the Administrative Agent that certain approval of the Lenders designated by the Company and/or that additional lenders Agent (which approval shall not be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders unreasonably withheld or such additional lenders and specifying delayed). Such notice shall set forth (i) the respective Incremental Commitments amount of such Incremental Lenders the increase in the Maximum Revolving Credit Amount being requested, which shall be not less than $5,000,000, and (ii) the date on which such incremental increase in the Maximum Revolving Credit Amount is to become effective (the “Increased Amount Date”). The Borrowers shall be responsible for all reasonable and documented, out of pocket, fees and expenses in connection with such increase, and, to the extent agreed in writing by the Borrowers pursuant to Section 2.18(b), syndication expenses and fees paid to Lenders providing the additional Revolving Commitments.
(b) The Borrowers and each new Lender shall execute and deliver to the Agent such documentation as the Agent shall reasonably specify to evidence the commitment of such new increase in the Maximum Revolving Credit Amount. Each such documentation shall specify the terms of the applicable Commitment Increase Dateincremental Revolving Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Revolving Commitments shall thereafter be Revolving Commitments with the same terms as the Revolving Commitments (including as to pricing and maturity). Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the incremental Revolving Commitments evidenced thereby (including adjusting the Commitment Percentages), and new Revolving Credit Notes shall be issued and the Borrowers shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Maximum Revolving Credit Amount, in each case without the consent of the Lenders other than those Lenders with incremental Revolving Commitments. The fees payable by the Borrowers upon any such incremental Revolving Commitments shall be agreed upon by the Agent, the Lenders with incremental Revolving Commitments and the Borrowers at the time of such increase. Notwithstanding the forgoing, nothing in this Section 2.18 shall constitute or be deemed to constitute an agreement by any Lender to increase its Commitment Percentage hereunder.
(c) Notwithstanding the foregoing, no incremental Revolving Commitment shall become effective under this Section 2.18 unless (i) on the date of such effectiveness, the conditions set forth in Section 3.2 shall be satisfied and the Agent shall have received a certificate to that effect dated such date and executed by a duly authorized officer of the Borrowers, (ii) the Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to the extent required by the Agent, consistent with those delivered on the Closing Date under Section 3.1 and such additional customary documents and filings as the Agent may reasonably require, and (iii) the Borrowers shall be in pro forma compliance with the covenants set forth in Section 7 after giving effect to such Commitment Increase (including incremental Revolving Commitments, the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall to be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to prepay Loans under ensure that all Revolving Credit Advances in respect of incremental Revolving Commitments, when originally made, are included in such aggregate Revolving Credit Advance of outstanding Revolving Credit Advances on a pro rata basis. The Borrowers agree that Section 2.18 shall apply to any conversion of any Loan bearing interest at the Facility of other relevant Lenders, Applicable LIBOR Rate to a Loan bearing interest at the Loans under Applicable Base Rate reasonably required by the Facility Lenders to be held ratably by all Lenders with Commitments in effect the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Gerber Scientific Inc)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering Subject to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders terms and specifying (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; providedconditions set forth herein, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) so long as no Default or Event of Default shall have occurred and be continuing and (y) the sum of the Total Commitments then in or shall result after giving effect (including, for the avoidance of doubt, to such Incremental Commitments, the Borrower shall have the right from the Closing Date until the date one Business Day prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of (a) shall not exceed one or more increases to the Aggregate Revolving Committed Amount (“Incremental Revolving Commitments” and the loans advanced thereunder, “Incremental Revolving Loans”) or (b) one or more term loan commitments or one or more increases in any then-existing term loan commitments (“Incremental Term Commitments” and the loans advanced thereunder, “Incremental Term Loans”; any Incremental Term Commitments, together with any Incremental Revolving Commitments, the “Incremental Commitments” and any Incremental Term Loans, together with any Incremental Revolving Loans, the “Incremental Loans”), by an aggregate amount of up to $2 billion500,000,000.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the The following terms and conditions of this Agreementshall apply to all Incremental Commitments and Incremental Loans: (a) the Incremental Loans shall constitute Credit Party Obligations, (b) (i) any Incremental Revolving Commitments shall be on the same terms (other than with respect to any upfront fees or arrangement fees) as the existing Revolving Commitments and (ii) any Incremental Term Loans shall have an amortization schedule, mandatory prepayment requirements (which mandatory prepayments shall be permitted to be applied, first, to make revolving credit loans Incremental Term Loans, and second, to any Revolving Loans), interest rates, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums as determined by Hyatt, the Administrative Agent and the institutions providing the applicable Incremental Term Commitments, (each, an “c) any such Incremental Loan”) Commitments and Incremental Loans shall be entitled to the Company and/or same voting rights as the applicable Subsidiary Borrowers from time existing Commitments and Loans and shall be entitled to time receive proceeds of prepayments on or after the Commitment Increase Date specified in same basis as comparable Loans, (d) any such Incremental Commitment shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below, (e) such Incremental Commitments shall be in a minimum principal Dollar Amount (determined as of the most recent Revaluation Date) of $50,000,000 and integral multiples of $5,000,000 in excess thereof, (f) the proceeds of any Incremental Loan Activation Notice will be used in an aggregate principal amount outstanding accordance with Section 3.13, (g) the Borrower shall execute such promissory notes as are necessary and requested by the Lenders to reflect the Incremental Commitments and Incremental Loans and (h) the representations and warranties made by the Borrower herein or in any other Credit Document or which are contained in any certificate furnished at any time up to but not exceeding the amount under or in connection herewith or therewith shall be true and correct in all material respects on and as of the Incremental Commitment date of such Incremental Lender specified Extension of Credit as if made on and as of such date (except for those which expressly relate to an earlier date in which case such Incremental Loan Activation Notice, subject to the terms of this Agreement representations and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 warranties shall be construed to obligate any Lender to execute an Incremental Loan Activation Noticetrue and correct as of such earlier date).
(c) On any Commitment Increase DateThe Borrower may invite existing Lenders or other banks, in the event any Loans under the Facility financial institutions and investment funds that are then outstanding, (i) each relevant Incremental Lender shall make available not Lenders and that are reasonably acceptable to the Administrative Agent and that would satisfy the same criteria that would be required for such amounts bank, financial institution or investment fund to be an “Eligible Assignee” to join this Credit Agreement as Lenders to provide any Incremental Commitments and Incremental Loans (any lender in immediately available respect of the Incremental Commitments and Incremental Loans, an “Incremental Lender”), provided (i) no existing Lender shall have any obligation to provide all or any portion of any Incremental Commitments or Incremental Loans and (ii) such other banks, financial institutions and investment funds that are not existing Lenders shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request and shall determine are necessary thereafter be deemed to be Lenders. The existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in order Sections 10.6(c) or 10.6(e)) of the outstanding Loans (excluding Competitive Loans) and Participation Interests to causethe Incremental Lenders providing any Incremental Revolving Commitment so that, after giving effect to such increased Commitments assignments, each Lender (including the Lenders providing the Incremental Revolving Commitments) will hold Loans and the application Participation Interests equal to its Commitment Percentage of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under and LOC Obligations (and accordingly the Borrower shall pay any additional amounts required pursuant to Section 2.17).
(d) Hyatt, the Administrative Agent and the applicable Incremental Lenders may, without the consent of any other Lender, enter into an amendment to any Credit Document (an “Incremental Amendment”) to effect such amendments to this Agreement and (iiithe other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.5. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any Incremental Amendment. The provisions of this Section 2.5(d) shall supersede any other provisions of this Agreement and the Company Credit Documents, including Section 2.12 and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment10.1.
Appears in 1 contract
Samples: Credit Agreement (Hyatt Hotels Corp)
Incremental Commitments. (a) The Company may from time on one or more occasions after the Second Restatement Effective Date, by written notice to time notify the Administrative Agent Agent, request prior to the Maturity Date, the establishment of Incremental Commitments; provided that certain the aggregate, cumulative amount of all Incremental Commitments established pursuant to this Section 2.21 after the Second Restatement Effective Date shall not exceed $50,000,000. Each such notice shall specify (i) the date on which the Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (B) the amount of the Lenders designated by Incremental Commitments being requested, (C) the identity of each Lender or other Person that the Company and/or proposes become an Incremental Revolving Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment for each such Lender or other Person (it being agreed that additional lenders shall (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any such Person that is not a Lender must be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering an Eligible Assignee that is reasonably acceptable to the Administrative Agent an and each Issuing Bank).
(b) The terms and conditions of any Incremental Loan Activation Notice signed by such Lenders or such additional lenders Commitment and specifying (i) Revolving Loans and other extensions of credit to be made thereunder shall be identical to the respective terms and conditions of the Commitments and Revolving Loans and other extensions of credit made thereunder; provided that if the interest rate spread applicable to Revolving Loans to be made under any Incremental Commitments (taking into account any applicable interest rate "floor" but not taking into account any upfront fees) exceeds the Applicable Rate or any applicable interest rate "floor" then in effect for Revolving Loans, then the Applicable Rate or interest rate "floor" in respect of Revolving Loans (and participation fees in respect of Letters of Credit) shall automatically be increased, effective on the date of the effectiveness of such Incremental Lenders Commitments, to equal the interest rate spread or interest rate floor, or both, as the case may be, applicable to Revolving Loans under the Incremental Commitments.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each applicable Borrower, each Incremental Revolving Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (xi) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Revolving Loans and other extensions of credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (yB) otherwise, in all material respects, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to and the making of Revolving Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Company shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 on a pro forma basis in accordance with Section 1.04(b), (iv) the sum Company shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section 2.21 and (v) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary's certificates, officer's certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Total Commitments then Administrative Agent, to give effect to the provisions of this Section 2.21.
(d) Upon effectiveness of an Incremental Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a "Lender" and a "Revolving Lender" hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders and Revolving Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders and Revolving Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in effect the event such Incremental Revolving Lender already has a Commitment, shall increase) the Commitment of such Incremental Revolving Lender and (includingB) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, for in each case, subject to further increase or reduction from time to time as set forth in the definition of the term "Commitment". For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentages of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of the effectiveness of any Incremental Commitments, each Revolving Lender shall be deemed to have assigned to each Incremental Revolving Lender holding such Incremental Commitments, and each such Incremental Revolving Lender shall be deemed to have purchased from each Revolving Lender, in an amount equal to the principal amount thereof (together with accrued and unpaid interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitments. Any Revolving Loans outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Revolving Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time such Revolving Loans will be repaid or refinanced with new Revolving Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Revolving Lenders (including the Incremental Revolving Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Revolving Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other Revolving Lenders so that, after giving effect thereto, all Revolving Loans that are Eurocurrency Loans are held by the Revolving Lenders (including the Incremental Revolving Lenders) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, apply thereto. Any ABR Loans outstanding on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount date of the Incremental Commitment effectiveness of such Incremental Lender specified in Commitments shall either be prepaid on such Incremental Loan Activation Notice, date or refinanced on such date (subject to the terms satisfaction of this Agreement and applicable borrowing conditions) with Revolving Loans made on such date by the applicable Revolving Lenders (including the Incremental Loan Activation NoticeRevolving Lenders) in accordance with their Applicable Percentages. Nothing in this Section 2.27 shall be construed In order to obligate effect any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstandingsuch refinancing, (i) each relevant Incremental Revolving Lender shall will make available ABR Loans by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such amounts in immediately available Loans of such Type times a percentage obtained by dividing the amount of such Incremental Revolving Lender's Incremental Commitment by the Aggregate Commitment (after giving effect to the effectiveness of the Incremental Commitments on such date) and (ii) such funds as will be applied to the prepayment of outstanding ABR Loans held by the Revolving Lenders other than the Incremental Revolving Lenders, and transferred by the Administrative Agent shall determine are necessary to the Revolving Lenders other than the Incremental Revolving Lenders, in order to causesuch amounts so that, after giving effect to such increased Commitments and the application of such amounts to prepay thereto, all ABR Loans under the Facility of other relevant Lenders, the Loans under the Facility to will be held ratably by all the Revolving Lenders with Commitments in the Facility in accordance with their then-current Applicable Percentages. On the date of the effectiveness of such Commitments Incremental Commitments, each Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the aggregate principal amount of the Revolving Loans of such Borrower being prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) The Administrative Agent shall notify Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.21 and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and of the Applicable Percentages of the Revolving Lenders after giving effect to such increase, (ii) thereto and of the Company and any relevant Subsidiary Borrower shall be assignments deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay been made pursuant to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment2.21(e).
Appears in 1 contract
Incremental Commitments. (a) The Company may from time may, upon five (5) Business Days’ notice to time notify the Administrative Agent that certain Agent, increase the Revolving Loan Commitment amount by adding one or more lenders or increasing the Revolving Loan Commitment of the Lenders designated a Lender, determined by the Company and/or that additional in its sole discretion, subject to the consent of the Administrative Agent, Swingline Lender and Issuing Banks (such consent not to be unreasonably withheld), which lender or lenders shall be added are willing to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility commit to such increase (each such lender, a “Commitment IncreaseNew Lender,” and such commitment, the “Incremental Commitment”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying ); provided, however, that (i) the respective Company may not elect any Incremental Commitments Commitment after the occurrence and during the continuance of such Incremental Lenders and (ii) the applicable Commitment Increase Date; providedan Event of Default, including, without limitation, any Event of Default that would result after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment, (ii) each Incremental Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and in an amount not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (yiii) after giving effect to all Incremental Commitments the sum of the Total aggregate Revolving Loan Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed the Dollar Equivalent of $2 billion.
6,100,000,000 and (biv) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount effective date of the Incremental Commitment of such Incremental Commitment, each New Lender specified in such Incremental Loan Activation Noticewill, subject to the terms extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Revolving Loan Commitments. An Incremental Commitment shall become effective upon the execution by each applicable New Lender of a counterpart of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available delivering such counterpart to the Administrative Agent such amounts in immediately available funds as Agent. Over the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and term of the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) Agreement the Company and shall increase the Revolving Loan Commitments no more than five (5) times. Notwithstanding anything to the contrary in this Agreement, any relevant Subsidiary Borrower Incremental Commitment made pursuant to this Section 2.14 may be effected by adding one or more tranches of Revolving Loan Commitments that are denominated in an Alternative Currency and/or term loan commitments (which shall be deemed to have prepaid be “Revolving Loan Commitments” for purposes of this Section 2.14 (other than clause (iv) above)), and reborrowed all outstanding Loans under this Agreement and (iii) the Lenders agree that any amendment required to implement an Incremental Commitment may be effected by the consent of the Company and only those Lenders that agree to participate in any relevant Subsidiary Borrower shall pay such tranche, provided that the aggregate amount of the commitments do not exceed the Dollar Equivalent of $6,100,000,000 at any time. Notwithstanding anything to the relevant Lenders the amountscontrary herein, if any, payable under no Lender shall be required to increase its Commitment pursuant to this Section 2.22 as a result of such prepayment2.14.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Agreement (American Tower Corp /Ma/)
Incremental Commitments. (a) The Company So long as no Default or Event of Default then exists or would result therefrom, the Borrower shall have the right to request on one or more occasions that one or more Lenders and/or one or more other Eligible Assignees provide (A) Incremental Term Loan Commitments under a given Tranche of Incremental Term Loans as designated in the Incremental Commitment Agreement in accordance with the provisions of this Agreement and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Incremental Term Loans, pursuant thereto or (B) one or more increases in the Revolving Loan Commitments (“Increased Revolving Loan Commitments”), it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Term Loan Commitment or Increased Revolving Loan Commitment as a result of any such request by the Borrower;
(ii) any Lender or other Eligible Assignee may from time provide an Incremental Term Loan Commitment without the consent of any other Lender; provided, that any Eligible Assignee that (x) is not a Lender, an affiliate of a Lender or an Approved Fund shall be subject to time notify the consent (not to be unreasonably withheld) of the Administrative Agent that certain or (y) is providing an Increased Revolving Loan Commitment shall be subject to the consent (not to be unreasonably withheld) of the Administrative Agent, the Swingline Lender and the Issuing Lenders;
(iii) each provision of Incremental Term Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders designated and other Eligible Assignees who will become Lenders pursuant thereto) of $25,000,000 and each provision of Increased Revolving Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) of $5,000,000;
(iv) after giving effect to the establishment of such Incremental Term Loan Commitments or Increased Revolving Loan Commitments, the Maximum Consolidated Senior Secured Leverage Condition (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in an amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) shall be satisfied on the date such Incremental Term Loan Commitments or Increased Revolving Loan Commitments are established;
(v) each Incremental Commitment Agreement pursuant to which Incremental Term Loan Commitments are being provided shall specifically designate the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Term Loans or Incremental Term Loan Commitments) unless the requirements of following Section 1.11(c) are satisfied);
(vi) each Lender agreeing to provide an (x) Incremental Term Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Commitment Agreement as provided in Section 1.01(c) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other Credit Documents or (y) an Increased Revolving Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, have a Revolving Loan Commitment from and after the date of the related Incremental Commitment Agreement;
(vii) in no event shall the Maturity Date of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be earlier than the Maturity Date of any other Tranche of Loans (or the Revolving Loan Commitments) outstanding at the time such Incremental Term Loans are incurred;
(viii) in no event shall the Weighted Average Life to Maturity of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be less than the Weighted Average Life to Maturity of any other Tranche of Term Loans outstanding at the time such Incremental Term Loans are incurred;
(ix) after giving effect to the establishment of such Incremental Term Loan Commitments and Increased Revolving Loan Commitments, the Borrower shall be in compliance with Sections 9.08 and 9.09 (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in an amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) at such time;
(x) the Applicable Margin, minimum Eurodollar Rate, if any, and minimum Base Rate, if any, for the Incremental Term Loans shall be determined by the Company and/or Borrower and the applicable Lenders or Eligible Assignees providing such Incremental Term Loans; provided, however, that additional lenders (i) the interest rate margins for the Incremental Term Loans shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the InitialTerm B Loans plus 25 basis points (unless the interest rate margins applicable to the Term Loans are increased to the extent necessary to achieve the foregoing), (ii) solely for purposes of the foregoing clause (i), the interest rate margins applicable to any InitialTerm B Loans or Incremental Term Loans shall be added deemed to include all upfront or similar fees or original issue discount (but excluding bona fide arrangement fees) payable by the Borrower generally to the Lenders providing such InitialTerm B Loans or such Incremental Term Loans based on an assumed four-year life to maturity) and (iii) if the lowest permissible Eurodollar Rate is greater than 1.501.00% or the lowest permissible Base Rate is greater than 2.502.00% for such Incremental Term Loans, the difference between such “floor” and 1.501.00%, in the case of Eurodollar Loans, or 2.502.00%, in the case of Base Rate Loans, shall be equated to interest rate margin for purposes of clause (i) above;
(xi) except as provided above, the terms and conditions applicable to Incremental Term Loans shall be determined by the Borrower and the Lenders providing such Incremental Term Loans; provided that to the extent such terms are materially different from those of the InitialTerm B Loans, such terms shall be reasonably satisfactory to the Administrative Agent; and
(xii) the Borrower shall provide the Administrative Agent with notice of each request for Incremental Term Loan Commitments pursuant to this Agreement as Section 1.11 contemporaneously with the making of each such request.
(b) At the time of any provision of Incremental Lenders with Term Loan Commitments for of a given Tranche pursuant to this Section 1.11, (i) the purpose of increasing the existing Commitments under the Facility Borrower, and each Lender or other Eligible Assignee which agrees to provide an Incremental Term Loan Commitment (a each an “Commitment IncreaseIncremental Term Loan Lender”) by executing shall execute (which execution may be in counterparts) and delivering deliver to the Administrative Agent an Incremental Commitment Agreement (it being understood that a single Incremental Commitment Agreement shall be executed and delivered by all Incremental Term Loan Activation Notice signed Lenders providing Incremental Term Loan Commitments in response to a particular request for same made by the Borrower) substantially in the form of Exhibit C (appropriately completed and with such Lenders modifications as may be reasonably acceptable to the Administrative Agent), with the effectiveness of the Incremental Term Loan Commitment(s) provided therein to occur on the date set forth in such Incremental Commitment Agreement and the payment of any fees required in connection therewith; (ii) VHS Holdco I and its Subsidiaries shall have delivered (or shall have agreed with the Administrative Agent to deliver within a time period to be agreed after such Incremental Term Loan Commitments are established, such amendments, modifications and/or supplements to the Security Documents (if any) as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the additional lenders Obligations to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and specifying entitled to the benefits of, the Security Documents; (iii) the Administrative Agent shall receive an acknowledgment from the Credit Parties that the Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are entitled to the benefits of the applicable Credit Documents; and (iv) the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Administrative Agent (which, unless otherwise requested by the Administrative Agent, may be the Borrower’s General Counsel) and dated such date, covering such matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement.
(c) Notwithstanding anything to the contrary contained above, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement, which designation may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., X-0, X-0, X-0, X-0, etc.), provided that the parties to a given Incremental Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Commitment Agreement shall have the same Maturity Date and the same Weighted Average Life to Maturity as the Tranche of Term Loans to which the new Incremental Term Loans are being added, and shall bear interest at the same rates (i.e., have the same Applicable Margins and other interest rate terms) applicable to such Tranche;
(ii) the new Incremental Term Loans shall have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Term Loan Repayment of the respective Tranche proportionately, provided that any Scheduled Term Loan Repayments relating to Incremental Commitments Term Loans being added to the Tranche of InitialTerm B Loans shall be determined in accordance with Section 4.02(b)); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 1.02, such Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Loans of the respective Tranche, and so that the existing Lenders with respect to such Tranche continue to have the same participation (by amount) in each Borrowing as they had before the making of the new Incremental Term Loans of such Tranche. To the extent the provisions of the preceding clause (iii) require that Lenders making new Incremental Term Loans add the same to then outstanding Borrowings of Eurodollar Loans, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Loans and which will end on the last day of such Interest Period).
(d) Upon each increase in the Revolving Loan Commitments pursuant to this Section 2.11, each Lender with a Revolving Loan Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing an Increased Revolving Loan Commitment, and each such Lender with an Increased Revolving Loan Commitment will automatically and without further act be deemed to have assumed, a portion of such existing Lender’s participations hereunder in the Letter of Credit Outstandings and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letter of Credit Outstandings and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Loan Commitment will equal the applicable Commitment Increase Date; provided, that RL Percentage of such additional Lender (after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Increased Revolving Loan Commitments) shall not exceed $2 billion.
and (b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agreesif, on the terms and conditions date of this Agreementsuch increase, to make revolving credit loans (eachthere are any Revolving Loans outstanding, an “Incremental Loan”) such Revolving Loans shall on or prior to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment effectiveness of such Incremental Lender specified in Increased Revolving Loan Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Incremental Increased Revolving Loan Activation NoticeCommitments), subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 which prepayment shall be construed to obligate accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increaseSection 2.08. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, (ii) the Company pro rata borrowing and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under pro rata payment requirements contained elsewhere in this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay not apply to the relevant Lenders transactions effected pursuant to the amounts, if any, payable under Section 2.22 as a result of such prepaymentimmediately preceding sentence.
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrower shall have the right at any time or from time to time notify on or after the Incremental Availability Date, upon written notice to and consent of the Administrative Agent, and in coordination with the Administrative Agent that certain as to all matters set forth in this Section 2.13, but without requiring the consent of any of the Lenders, to request that one or more Lenders designated (and/or one or more other Eligible Transferees which will become Lenders) provide Incremental Commitments pursuant to (x) one or more new Tranches of Incremental Commitments or (y) an increase in the amount of Incremental Commitments under one or more existing Tranches on the same terms as such existing Tranches (the “Incremental Commitment Increase” and, together with any additional Tranche of Incremental Commitments, the “Incremental Facility”), provided that:
(i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the Company and/or that additional lenders Borrower;
(ii) any Lender (including any Eligible Transferees which will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender;
(iii) the provision of Incremental Commitments pursuant to this Section 2.13 on a given date pursuant to a particular Incremental Commitment Agreement shall be added in a minimum aggregate amount (for all Lenders and other Eligible Transferees who will become Lenders pursuant thereto) of not less than $20,000,000 (or such lesser amount as agreed to by the Borrower) and shall be in integral multiples of $5,000,000;
(iv) such Incremental Commitments shall not exceed an aggregate principal amount of $350,000,000;
(v) the Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement;
(vi) the Borrower shall not obtain Incremental Commitment Increases or new Tranches of Incremental Commitments pursuant to this Section 2.13 more than three times and each notice thereof from the Borrower shall set forth the requested amount and proposed terms of the relevant Incremental Commitment Increase or new Tranche of Incremental Commitments;
(vii) the upfront fees payable to each Incremental Lender in respect of each Incremental Commitment shall be separately agreed to by the Borrower and each such Incremental Lender; and
(viii) the Incremental Loans incurred under any Tranche and the Letters of Credit issued pursuant to an Incremental Commitment under such Tranche shall constitute Loans and Letters of Credit for all purposes of this Agreement and the other Credit Documents and as a consequence all such Incremental Lenders Loans and Letters of Credit (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the Security Documents, and receive the benefit of the Guaranties, on a pari passu basis with Commitments for all other Obligations secured by the purpose Security Documents and receiving the benefit of increasing the existing Guaranties.
(b) On or prior to the Incremental Availability Date, at the time of any provision of Incremental Commitments under any Tranche pursuant to this Section 2.13, the Facility following conditions shall have been satisfied:
(a i) the Borrower and each such Lender or other Eligible Transferee (each an “Commitment IncreaseIncremental Lender”) by executing which agrees to provide an Incremental Commitment shall execute and delivering deliver to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying Commitment Agreement substantially in the form of Exhibit Q (iappropriately completed) (each an “Incremental Commitment Agreement”), with the respective Incremental Commitments effectiveness of such Incremental Lenders and Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Eligible Transferee providing such Incremental Commitment if such consent would be required under Section 14.04 for an assignment of Loans or Commitments, as applicable, to such Eligible Transferee;
(ii) the applicable Commitment Increase Date; providedBorrower and each Credit Party shall have delivered such amendments, modifications and/or supplements to the Credit Documents as are necessary or in the reasonable opinion of the Administrative Agent, desirable to insure that after giving effect the additional Obligations to be incurred pursuant to the Incremental Commitments are secured by, and entitled to the benefits of, the Security Documents and the Guaranties;
(iii) the Administrative Agent shall have received evidence satisfactory to it that the additional Obligations to be incurred on such Commitment Increase date pursuant to the Incremental Commitments are permitted by the terms of the outstanding Indebtedness of the Borrower and its Subsidiaries;
(iv) if reasonably requested by the Administrative Agent, the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Administrative Agent covering such matters as the Administrative Agent may reasonably request;
(v) the Borrower and the other Credit Parties shall deliver to the Administrative Agent such other officers’ certificates, board of director resolutions and evidence of existence and good standing, where applicable, as the Administrative Agent shall reasonably request;
(vi) the Parent shall be in compliance with the covenants set forth in Sections 10.07 through and including 10.10, in each case determined on a pro forma basis as of the incurrence most recently ended Test Period (or, if no Test Period cited in Sections 10.07 through and including 10.10 has concluded, the covenants in Sections 10.07 through and including 10.10 for the first Test Period cited in such Sections shall be satisfied as of any the last four quarters then ended), in each case, as if such Incremental Loans Commitments had been outstanding and fully utilized on the applicable Commitment Increase Date last day of such fiscal quarter of the Parent for testing compliance therewith, certified as such by the Parent in writing, and use the Administrative Agent shall have received evidence of proceeds thereofsuch compliance;
(vii) the Administrative Agent shall have received a certificate, dated the Incremental Availability Date, and signed on behalf of the Borrower by the chief executive officer, the president or any vice president of the Borrower certifying on behalf of the Borrower that all of the conditions set forth in Sections 6.09, 6.10 and 7.01 have been satisfied on such date;
(xviii) no Default or Event of Default shall be continuing and (y) exist at the sum time of a request for Incremental Commitments under any Tranche, upon the Total Commitments then in effect (including, for effectiveness of any Incremental Commitment Agreement or at the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender time that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms is made or a Letter of Credit is issued pursuant to such Tranche (and conditions of this Agreement, to make revolving credit loans after giving effect thereto); and
(each, an “Incremental Loan”ix) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount all of the representations and warranties of each Credit Party set forth in Section 8 and in each other Credit Document shall be true and correct in all material respects at the time of a request for Incremental Commitments under any Tranche, upon the effectiveness of any Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and at the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute time that an Incremental Loan Activation Noticeis made or a Letter of Credit is issued pursuant to such Tranche (and after giving effect thereto) (in each case, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date).
(c) Other than as set forth in this Agreement, Incremental Loans made pursuant to any Tranche of Incremental Commitments shall have the same terms as the Initial Loans; provided that the “Applicable Margin” with respect to a Tranche of Incremental Commitments and Letters of Credit issued under such Tranche shall be a percentage per annum agreed to by the Borrower and the Lender providing such Incremental Commitments as set forth in the relevant Incremental Commitment Agreement.
(d) On the effective date of any Incremental Commitment Increase Datepursuant to this Section 2.13, the Borrower shall, in coordination with the event any Administrative Agent, repay outstanding Incremental Loans of the existing Lenders under each Tranche of Incremental Commitments and incur additional Loans under the Facility are then outstandingeach such Tranche from certain other new Lenders, (i) in each relevant Incremental Lender shall make available case to the Administrative Agent extent necessary so that all of the Lenders under such amounts Tranche participate in immediately available funds as each outstanding Borrowing of Incremental Loans and issuance of Letters of Credit under such Tranche pro rata on the Administrative Agent shall determine are necessary in order to cause, basis of their respective Incremental Commitments under such Tranche (after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments any increase in the Facility in accordance with such Commitments after giving effect Total Commitment pursuant to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment.2.13
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrower shall have the right, at any time and from time to time notify after the Restatement Effective Date by written notice to and in consultation with the Administrative Agent that certain of Agent, to request (i) an increase in the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with aggregate Commitments for the purpose of increasing the existing Commitments under the Facility (each such requested increase, a “Revolving Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments of such Incremental Lenders and ), and/or (ii) one or more term loan commitments (each such requested term loan commitment, a “Term Loan Commitment” and, together with any Revolving Commitment Increase, the applicable “Incremental Commitments”) to make one or more term loans (each a “Term Loan”) by having one or more existing Lenders increase their respective Commitments then in effect and/or provide a Term Loan Commitment Increase Date(each, an “Increasing Lender”), by adding as a Lender with a new Commitment and/or Term Loan Commitment hereunder one or more Persons that are not already Lenders (each, an “Additional Lender” and, together with each Increasing Lender, the “Incremental Lenders”), or a combination thereof; providedprovided that (A) any such request for an Incremental Commitment shall be in a minimum amount of $25,000,000, that (B) immediately after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on Commitment, (y) the applicable Commitment Increase Date aggregate Commitments plus Incremental Commitments shall not exceed $350,000,000 and use (z) the aggregate of proceeds thereof) all Incremental Commitments effected shall not exceed $100,000,000, (xC) no Default or Event of Default shall have occurred and be continuing on the applicable Incremental Commitment Effective Date (as hereinafter defined) or shall result from any Incremental Commitment, (D) immediately after giving effect to any Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof) the Borrower shall be in compliance with the financial covenants contained in ARTICLE VII, and (yE) the sum Borrower shall give the existing Lenders the right of first refusal for participating in any such Incremental Commitment by providing such notice to the Administrative Agent ten (10) Business Days before making a request to any Person that is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in such requested Incremental Commitment if it provides written notice of its election to participate within ten (10) Business Days of the Total Commitments then Administrative Agent’s receipt of such notice. Such notice from the Borrower shall specify the requested amount of the Incremental Commitment. No Lender shall have any obligation to become an Increasing Lender. Any fees paid by the Borrower for an Incremental Commitment to an Incremental Lender, the Administrative Agent or Xxxxx Fargo, as Arranger, shall be for their own account and shall be in effect (includingan amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion. Nothing contained in this Section 2.20 shall be construed to obligate the Borrower to pay any fee for an Incremental Commitment to an Incremental Lender, the avoidance of doubt, Incremental Commitments) shall not exceed $2 billionAdministrative Agent or either Arranger.
(b) Revolving Commitment Increases, if any, shall have the same terms (other than upfront fees) as the existing Commitments and be effected as set forth in Section 2.20(f). Term Loan Commitments, if any, shall have terms and conditions acceptable to the Administrative Agent, the Incremental Lenders making such Term Loan Commitments and the Borrower (such terms and conditions to be set forth in an amendment to this Agreement effective as of the Incremental Commitment Effective Date), provided that the Term Loans made pursuant to such Term Loan Commitments (i) shall not mature earlier than the Maturity Date, and (ii) will constitute Obligations of the Borrower on a pari passu basis with any Revolving Loans
(c) Each Additional Lender must be approved in writing by the Administrative Agent and the Issuing Lender. The Borrower and each Additional Lender shall execute a joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent and the Borrower may reasonably require including without limitation the documentation for the amendment referred to in Section 2.20(e)(i)(A), all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment adjustments referred to in Section 2.20(f).
(d) If Incremental Commitments are provided in accordance with this Section 2.20, the Borrower (in consultation with the Administrative Agent) and each Incremental Lender that is shall agree upon the effective date (the “Incremental Commitment Effective Date,” which shall be a signatory Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Incremental Commitment Effective Date. For clarity, no Lender other than an Incremental Loan Activation Notice severally agreesLender must execute any joinder or amendment in connection with an Incremental Commitment.
(e) Notwithstanding anything set forth in this Section 2.20 to the contrary, the Borrower shall not incur any Revolving Loans or Term Loans pursuant to any Incremental Commitment (and no Incremental Commitment shall be effective) unless the conditions set forth in Section 2.20(a) as well as the following conditions precedent are satisfied on the applicable Incremental Commitment Effective Date:
(i) The Administrative Agent shall have received the following, each dated the Incremental Commitment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) an amendment to this Agreement signed by the Incremental Lenders setting forth the terms and conditions of this Agreementthe Term Loan Commitments, if any, and the reallocation of Commitments and the allocation of Term Loan Commitments, as applicable, referred to make revolving credit loans in Section 2.20(f), together with all other documentation required by the Administrative Agent pursuant to Section 2.20(c);
(eachB) an instrument, duly executed by the Borrower and each other Subsidiary Guarantor, if any, acknowledging and reaffirming its obligations under the Subsidiary Guaranty, and the other Credit Documents to which it is a party;
(C) a certificate of the secretary or an “Incremental Loan”assistant secretary of the Borrower and each Subsidiary Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice Commitment;
(D) a certificate of a Financial Officer of the Borrower, certifying that (x) all representations and warranties of the Borrower and the Subsidiary Guarantors contained in an aggregate principal amount outstanding at any time up to but not exceeding this Agreement and the amount other Credit Documents are true and correct in all material respects as of the Incremental Commitment Effective Date (except to the extent such representation and warranty is qualified by materiality, in which case, such representation and warranty shall be true and correct in all respects or except to the extent that such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such Incremental Lender specified in date), (y) immediately after giving effect to such Incremental Loan Activation Notice, subject to the terms of this Agreement Commitment (including any Borrowings in connection therewith and the applicable application of the proceeds thereof), the Borrower is in compliance with the financial covenants contained in ARTICLE VII, and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Incremental Loan Activation Notice. Nothing Commitment (including any Borrowings in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.connection therewith and the application of the proceeds thereof); and
(cE) On any Commitment Increase Datean opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available addressed to the Administrative Agent and the Lenders, together with such amounts in immediately available funds other documents, instruments and certificates as the Administrative Agent shall determine are necessary in order have reasonably requested.
(f) For Revolving Commitment Increases, on the Incremental Commitment Effective Date, (i) the aggregate principal outstanding amount of the Revolving Loans (the “Initial Loans”) immediately prior to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility Incremental Commitment shall be deemed to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increaserepaid, (ii) immediately after the Company and any relevant Subsidiary effectiveness of the Incremental Commitment, the Borrower shall be deemed to have prepaid made new Borrowings of Revolving Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and reborrowed all outstanding Loans under this Agreement of the Types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.2(b), (iii) the Company and any relevant Subsidiary Borrower each Lender shall pay to the relevant Lenders Administrative Agent in immediately available funds an amount equal to the amountsdifference, if anypositive, payable under Section 2.22 as a result between (y) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of the Subsequent Borrowings and (z) such Lender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such prepaymentfunds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans and (z) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of the amount of the Subsequent Borrowings, (v) the Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Commitments (calculated after giving effect to the Incremental Commitment), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Lenders entitled thereto, and (vii) Schedule 1.1 shall be amended to reflect the Commitments of all Lenders after giving effect to the Incremental Commitment. The deemed payments made pursuant to clause (i) above in respect of each LIBOR Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.18 if the Incremental Commitment Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Samples: Credit Agreement (Old Dominion Freight Line Inc/Va)
Incremental Commitments. (a) The Company may Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount not to exceed the Incremental Amount at the time notify of such request from one or more Incremental Lenders (which may include any existing Lender) willing to provide such Incremental Commitments in their own discretion; provided, that each Incremental Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld) unless such Incremental Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated by the Company and/or that additional lenders Incremental Commitments being requested (which shall be added in minimum increments of $2.5 million and a minimum amount of $10.0 million or equal to this Agreement as the remaining Incremental Lenders with Amount or such lesser amount acceptable to the Administrative Agent), (ii) the date on which such Incremental Commitments for are requested to become effective (the purpose of increasing the existing “Increased Amount Date”), and (iii) whether such Incremental Commitments are to be (A) Tranche A Revolving Facility Commitments, (B) Tranche B Revolving Facility Commitments, (C) commitments to make revolving loans (such loans, “Other Tranche A Loans”) under the Borrowing Base applicable to, and with the payment and collateral priorities of, the Tranche A Revolving Facility Loans, but with pricing terms, final maturity date and/or upfront or similar fees or other terms different from the Tranche A Revolving Facility Loans or (a D) commitments to make revolving loans (such loans, “Commitment IncreaseOther Tranche B Loans”) by executing under the Borrowing Base applicable to, and delivering with the payment and collateral priorities of, the Tranche B Revolving Facility Loans, but with pricing terms, final maturity date and/or upfront or similar fees or other terms different from the Tranche B Revolving Facility Loans.
(b) The applicable Borrowers and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed by Assumption Agreement and such Lenders or such additional lenders and specifying (i) other documentation as the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect Administrative Agent shall reasonably specify to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of evidence the Incremental Commitment of such Incremental Lender specified in such Lender. Each Incremental Loan Activation Notice, subject to Assumption Agreement shall specify the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.Commitments; provided, that:
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender the Other Tranche A Loans shall make available rank pari passu in right of payment and of security with the Tranche A Revolving Facility Loans and, except as to pricing, final maturity date and/or upfront or similar fees, shall have (x) the same terms as the Tranche A Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent such amounts Agent,
(ii) the Other Tranche B Loans shall rank pari passu in immediately available funds right of payment and of security with the Tranche B Revolving Facility Loans and, except as to pricing, final maturity date and/or upfront or similar fees, shall have (x) the same terms as the Tranche B Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent Agent,
(iii) the final maturity date of any Other Tranche A Loans shall determine are necessary be no earlier than the Maturity Date then in order to causeeffect for the Tranche A Revolving Facility Loans, after giving effect to such increased Commitments and the application final maturity date of any Other Tranche B Loans shall be no earlier than the Maturity Date then in effect for the Tranche B Revolving Facility Loans,
(iv) the Other Tranche A Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in comparison to the Tranche A Revolving Facility Loans in any voluntary or mandatory prepayment or commitment reduction hereunder (except at maturity), and the Other Tranche B Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in comparison to the Tranche B Revolving Facility Loans in any voluntary or mandatory prepayment or commitment reduction hereunder (except at maturity),
(v) the All-in Yield in respect of any Other Tranche A Loans may exceed the All-in Yield in respect of the Tranche A Revolving Facility Loans by no more than 0.50% or, if such amounts to prepay Other Tranche A Loans under do so exceed such All-in Yield for the Tranche A Revolving Facility of other relevant LendersLoans (such difference, the “Tranche A Yield Differential”), then the Applicable Margin applicable to the Tranche A Revolving Facility Loans under the Facility to shall be held ratably by all Lenders with Commitments in the Facility in accordance with increased such Commitments that after giving effect to such increase, the Tranche A Yield Differential with respect to the Other Tranche A Loans shall not exceed 0.50%,
(vi) the All-in Yield in respect of any Other Tranche B Loans may exceed the All-in Yield in respect of the Tranche B Revolving Facility Loans by no more than 0.50% or, if such Other Tranche B Loans do so exceed such All-in Yield for the Tranche B Revolving Facility Loans (such difference, the “Tranche B Yield Differential”), then the Applicable Margin applicable to the Tranche B Revolving Facility Loans shall be increased such that after giving effect to such increase, the Tranche B Yield Differential with respect to the Other Tranche B Loans shall not exceed 0.50%,
(vii) at any time prior to the Exit Facility Conversion Date, the Applicable Margin on the Tranche B Revolving Facility Loans and any Other Tranche B Loans will be increased, if necessary, in connection with the creation of any Other Tranche A Loans such that after giving effect to such increase the All-in Yield in respect of the Tranche B Revolving Facility Loans and any Other Tranche B Loans shall be at least equal to the All-in Yield in respect of the Tranche A Revolving Facility Loans and any Other Tranche A Loans, and
(viii) at any time after the Exit Conversion Date, the Applicable Margin on the Tranche B Revolving Facility Loans and any Other Tranche B Loans will be increased, if necessary, in connection with the creation of any Other Tranche A Loans such that after giving effect to such increase the All-in Yield in respect of the Tranche B Revolving Facility Loans and any Other Tranche B Loans shall be at least 0.75% higher than the All-in Yield in respect of the Tranche A Revolving Facility Loans and any Other Tranche A Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.20 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrowers and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clauses (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of Intermediate Holdings, (ii) the Company Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the DIP Closing Date or the Exit Facility Conversion Date, as applicable, and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the additional Revolving Facility Loans and/or the Other Revolving Facility Loans in respect of the Incremental Commitments are secured by the Collateral ratably with (or, to the extent contemplated by the Incremental Assumption Agreement, junior to) the then existing Revolving Facility Loans and (iii) after giving effect to such Incremental Commitment, (x) on or prior to the Exit Facility Conversion Date, Intermediate Holdings and its Subsidiaries shall be in compliance with Section 6.14 and (y) after the Exit Facility Conversion Date, Intermediate Holdings and its Subsidiaries shall be in compliance with the Financial Performance Covenant on a Pro Forma Basis.
(d) Each of the parties hereto agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all additional Revolving Facility Loans in respect of Incremental Commitments (other than Other Revolving Facility Loans), when originally made, are included in each Borrowing of outstanding Tranche A Revolving Facility Loans or Tranche B Revolving Facility Loans, as applicable, on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans or CDOR Rate Loans, as applicable to ABR Rate Loans or Canadian Prime Rate Loans, as applicable, as reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section 2.20), pursuant to one or more offers made from time to time by a Borrower to all Lenders of any Class of Commitments, on a pro rata basis (based on the aggregate outstanding Commitments under such Class) and on the same terms (“Pro Rata Extension Offers”), such Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Commitments of such Class and to otherwise modify the terms of such Lender’s Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Commitments of such Class). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Revolving Facility Commitments, that all of the Revolving Facility Commitments of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension of such Class are the same. Any such extension (an “Extension”) agreed to between such Borrower and any relevant Subsidiary such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Commitment for such Lender (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”).
(f) The applicable Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Revolving Facility Commitments; provided, that (i) except as to pricing, fees and final maturity (which shall be determined by such Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (A) the same terms as an existing Class of Revolving Facility Commitments or (B) have such other terms as shall be reasonably satisfactory to the Administrative Agent and (ii) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments or commitment reductions hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrowers and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, such Extending Lender will be deemed to have prepaid an Incremental Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), (i) the aggregate amount of Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Revolving Facility Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Commitment at any time or from time to time (other than (x) notice to the Administrative Agent of such Extension and reborrowed the terms of the Extended Revolving Facility Commitment implemented thereby and (y) the satisfaction of the conditions set forth in clauses (b) and (c) of Section 4.01 and the receipt by the Administrative Agent of a certificate to that effect dated as of the effective date of the Extension and executed by a Responsible Officer of Intermediate Holdings), (v) no consent of any Lender or Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans and/or Commitments (or a portion thereof), (vi) all outstanding Loans Extended Revolving Facility Commitments and all obligations in respect thereof shall be Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents and (iiivii) no Issuing Bank or Swingline Lender shall be obligated to provide Swingline Loans or issue Letters of Credit under such Extended Revolving Facility Commitments beyond the Company and any relevant Subsidiary applicable maturity date of the applicable Commitments that were extended by such Extended Revolving Facility Commitments unless it shall have consented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the corresponding Pro Rata Extension Offer; provided, that the applicable Borrower shall pay cooperate with the Administrative Agent prior to the relevant Lenders the amountsmaking any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, if anyincluding, payable under Section 2.22 as a result of such prepaymentwithout limitation, timing, rounding and other adjustments.
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Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Commitments and/or Incremental Revolving Credit Commitments, in an amount not to exceed the Incremental Term Loan Amount or the Incremental Revolving Loan Amount, as applicable, from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders, which may include any existing Lender; provided that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent that certain and, in the case of an Incremental Revolving Credit Lender, the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Term Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in integral multiples of $1,000,000 and a minimum amount of $5,000,000 or in an amount equal to the remaining Incremental Term Loan Amount or the Incremental Revolving Loan Amount, as applicable), (ii) the date on which such Incremental Term Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 10 Business Days after the date of such notice) and (iii) in the case of Incremental Term Commitments, whether such Incremental Term Commitments are to be Term Loan Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). For the avoidance of doubt, (x) no Lender shall have any obligation to make an Incremental Term Loan or to assume an Incremental Revolving Credit Commitment and (y) no approval from the Administrative Agent or the Lenders designated shall be required with regard to, and neither the Administrative Agent nor any Lender shall have the right to object to, challenge or obstruct, any request by the Company and/or that additional lenders shall be added Borrower to this Agreement as Incremental Lenders with Commitments the Administrative Agent to arrange for the purpose making of increasing the existing Commitments under the Facility any Incremental Term Loan or Incremental Revolving Credit Commitment.
(a “Commitment Increase”b) by executing The Borrower and delivering each Incremental Term Lender and/or Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Activation Notice signed by Assumption Agreement and/or an Incremental Revolving Credit Assumption Agreement and such Lenders or other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Commitment of such additional lenders and specifying Incremental Term Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each such agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving Credit Commitments to be made thereunder; provided, however, that, without the prior written consent of the Required Lenders, (i) the respective Incremental Commitments final maturity date of any Other Term Loans shall be no earlier than (A) the final maturity date of any other Class of Term Loans and (B) if the initial yield (determined as provided below) on such Incremental Lenders and Other Term Loans exceeds the Applicable Percentage then in effect for Eurodollar Term Loans of any Class, the date falling six months after the final maturity date of each such adversely affected Class; (ii) the average life to maturity of any Other Term Loans shall be no shorter than (A) the average life to maturity of any other Class of Term Loans and (B) if the initial yield (determined as provided below) on such Other Term Loans exceeds the Applicable Percentage then in effect for Eurodollar Term Loans of any Class, six months longer than the average life to maturity of each such adversely affected Class; and (iii) if the initial yield on any Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (A) the margin over the Adjusted LIBO Rate applicable to the Other Term Loans and (B) if the Other Term Loans are initially made at a discount or the lenders making the same receive an “upfront” fee (as opposed to an “arrangement” or similar fee paid solely to the arranger or arrangers of such Other Term Loans) from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Percentage for Eurodollar Term Loans of any Class, then the Applicable Percentage for each adversely affected Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Commitment Increase Date; providedor Incremental Revolving Credit Commitment evidenced thereby and any increase to the Applicable Percentages required by the foregoing provisions of this Section 2.24(b). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.24 unless (i) on or before the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders or Incremental Revolving Credit Lenders, as the case may be) legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date under Section 4.02 and (iii) in the case of an Incremental Term Commitment the Borrower would be in Pro Forma Compliance after giving effect to such Incremental Term Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall Loans to be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments made thereunder and the application of the proceeds therefrom as if made and applied on such amounts date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to prepay ensure that (i) all Incremental Term Loans under the Facility (other than Other Term Loans), when originally made, are included in each Borrowing of other relevant Lendersoutstanding Term Loans on a pro rata basis, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, and (ii) all Revolving Loans in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Company and Administrative Agent to effect the foregoing. In addition, to the extent any relevant Subsidiary Borrower Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a) required to be made after the making of such Incremental Term Loans shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) ratably increased by the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result aggregate principal amount of such prepaymentIncremental Term Loans.”
(e) Section 3.23
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Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify time, request Incremental Term Loan Commitments in an amount not to exceed the Incremental Term Loan Amount from one or more Incremental Term Lenders, which may include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Lenders designated Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed by the Company and/or Administrative Agent), and (iii) whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). The Borrower may elect in the notice delivered pursuant to this Section 2.24(a), with the consent of the Administrative Agent and the Issuing Bank, that additional lenders the proceeds of the Term Loans made pursuant to an Incremental Term Loan Commitment be deposited in the Deposit L/C Collateral Account as collateral for the payment and performance of the Borrower’s reimbursement obligations to the Issuing Bank in respect of Deposit Letters of Credit and that the Deposit L/C Facility Amount be increased by an amount equal to the amount of such deposit (such that, upon the date on which such Incremental Term Loan Commitments become effective in accordance with this Section 2.24, the Borrower shall cause the proceeds of any such Incremental Term Loans the subject of such an election, to be deposited in the Deposit L/C Collateral Account as collateral for the payment and performance of its reimbursement obligations to the Issuing Bank in respect of Deposit Letters of Credit, in the manner set forth in and subject to the provisions of Section 2.23(l), whereupon the Deposit L/C Facility Amount shall be added automatically increased by an amount equal to this Agreement as the amount of such deposit).
(b) The Borrower and each Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing Term Lender shall execute and delivering deliver to the Administrative Agent an Incremental Term Loan Activation Notice signed by Assumption Agreement and such Lenders or other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such additional lenders and specifying Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the respective Incremental Commitments final maturity date of such Incremental Lenders and any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the average life to maturity of the Other Term Loans shall be no shorter than the average life to maturity of the Term Loans, and (iii) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans (which shall be increased by the amount that any “LIBOR floor” applicable Commitment Increase Date; provided, that after to such Other Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to the last sentence of the definition of such Commitment Increase (including the incurrence of any Incremental Loans term) that would be in effect for a three-month Interest Period commencing on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing such date and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points the sum of (A) the margin then in effect for Eurodollar Term Loans (which shall be the sum of the Total Commitments then Applicable Percentage for Eurodollar Term Loans increased by the amount that any “LIBOR floor” applicable to such Eurodollar Term Loans on such date (i.e., 1.75%) would exceed the Adjusted LIBO Rate (without giving effect to the last sentence of the definition of such term) that would be in effect for a three-month Interest Period commencing on such date) plus (including, for B) the avoidance OID initially paid in respect of doubt, Incremental Commitments) shall not exceed $2 billion.
such Term Loans (b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Percentage for such Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment of such Term Loan Commitment, the Incremental Lender specified in such Incremental Loan Activation NoticeTerm Loans evidenced thereby and, subject if applicable, the increase to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation NoticeDeposit L/C Facility Amount resulting therefrom.
(c) On any Notwithstanding the foregoing, no Incremental Term Loan Commitment Increase Dateshall become effective under this Section 2.24 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b)(ii) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) at the time of, and after giving effect to, the incurrence of the Incremental Term Loans, the Leverage Ratio would not exceed 2.75 to 1.0 (or, in the event any Loans under that the Facility are then outstanding, (i) each relevant Incremental Lender shall make available Declaration Date Transactions have been consummated on or prior to the Administrative Agent such amounts Outside Date, as from the Declaration Date, 1.25 to 1.0) and (iii) except as otherwise specified in immediately available funds as the applicable Incremental Term Loan Assumption Agreement, the Administrative Agent shall determine have received (with sufficient copies for each of the Incremental Term Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are necessary included in order each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Term Borrowing to causebe converted into an ABR Term Borrowing on the date of each Incremental Term Loan, after giving effect or by allocating a portion of each Incremental Term Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such increased Commitments Interest Period and the application other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) required to be made after the making of such amounts to prepay Incremental Term Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) ratably increased by the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result aggregate principal amount of such prepaymentIncremental Term Loans.
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Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent Each Incremental Lender hereby agrees that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) its Revolving Facility Commitment will be increased by the respective amount of its Incremental Commitments Commitment set forth on Schedule 1 attached hereto effective as of such Incremental Lenders and the First Amendment Effective Date (as defined in Section 4 below), (ii) the applicable Commitment Increase Date; provided, that after giving effect to such increase, its total Revolving Facility Commitment Increase will be the amount of its “Total Revolving Facility Commitment” set forth on Schedule 1 attached hereto, and (including iii) it shall continue to be a Lender under the incurrence Credit Agreement. The parties hereto hereby acknowledge that this First Amendment constitutes the written notice required pursuant to Section 2.20(a) and Section 2.20(e) of any the Credit Agreement (as such sections are labeled after giving effect to the amendments described in Section 3(d) below).
(b) On the First Amendment Effective Date, (i) each of the existing Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the outstanding Revolving Facility Loans and participations in Revolving Letters of Credit and Swingline Loans outstanding on such date that will result in, after giving effect to all such assignments and purchases, such Revolving Facility Loans and participations in Revolving Letters of Credit and Swingline Loans being held by existing Lenders and Incremental Lenders ratably in accordance with their Revolving Facility Commitments after giving effect to the applicable addition of such Incremental Commitments to the Revolving Facility Commitments, (ii) each Incremental Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing deemed, for all purposes, a Revolving Facility Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Facility Loan and have the same terms as any existing Revolving Facility Loan and (yiii) the sum each Incremental Lender shall become a Lender with respect to its Revolving Facility Commitment and all matters relating thereto.
(c) Each Incremental Lender (i) confirms that it has received a copy of the Total Commitments then Credit Agreement, the Parent Guarantee and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this First Amendment, (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent or any other Lender or agent thereunder and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in effect taking or not taking action under the Credit Agreement, (iii) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement, the Parent Guarantee and the other Loan Documents as are delegated to Administrative Agent or the Collateral Agent by the terms thereof, together with such powers as are reasonably incidental thereto and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.
(d) Each Lender party hereto (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental each undersigned Lender that is a signatory to not an Incremental Loan Activation Notice severally agrees, on Lender (if any)) hereby agrees that the terms and conditions of this Agreement, Borrower shall not be required to make revolving credit loans any break funding payments to such Lender which may otherwise be required under Section 2.16 of the Credit Agreement (each, an “Incremental Loan”) as in effect immediately prior to the Company and/or First Amendment Effective Date) solely resulting from the applicable Subsidiary Borrowers from time increase in the Revolving Facility Commitments effected pursuant to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment this First Amendment; provided, that each Lender’s waiver of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing break funding payments set forth in this Section 2.27 paragraph (d) is a limited, one-time waiver, and nothing contained herein shall be construed to obligate the Administrative Agent or any Lender to execute an Incremental Loan Activation Notice.
(c) On grant any Commitment Increase Dateadditional or future waiver with respect to, or in connection with, any provision of the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant LendersCredit Agreement, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and Parent Guarantee or any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentother Loan Document.
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Incremental Commitments. (a) The Company may from time on one or more occasions, by written notice to time notify the Administrative Agent Agent, request prior to the Maturity Date, the establishment of Incremental Commitments; provided that certain the aggregate, cumulative amount of all Incremental Commitments established pursuant to this Section 2.21 shall not exceed $100,000,000. Each such notice shall specify (i) the date on which the Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (B) the amount of the Lenders designated by Incremental Commitments being requested, (C) the identity of each Lender or other Person that the Company and/or proposes become an Incremental Revolving Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment for each such Lender or other Person (it being agreed that additional lenders shall (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any such Person that is not a Lender must be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering an Eligible Assignee that is reasonably acceptable to the Administrative Agent an and each Issuing Bank).
(b) The terms and conditions of any Incremental Loan Activation Notice signed by such Lenders or such additional lenders Commitment and specifying (i) Revolving Loans and other extensions of credit to be made thereunder shall be identical to the respective terms and conditions of the Commitments and Revolving Loans and other extensions of credit made thereunder; provided that if the interest rate spread applicable to Revolving Loans to be made under any Incremental Commitments (taking into account any applicable interest rate “floor” but not taking into account any upfront fees) exceeds the Applicable Rate or any applicable interest rate “floor” then in effect for Revolving Loans, then the Applicable Rate or interest rate “floor” in respect of Revolving Loans (and participation fees in respect of Letters of Credit) shall automatically be increased, effective on the date of the effectiveness of such Incremental Lenders Commitments, to equal the interest rate spread or interest rate floor, or both, as the case may be, applicable to Revolving Loans under the Incremental Commitments.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each applicable Borrower, each Incremental Revolving Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (xi) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Revolving Loans and other extensions of credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (yB) otherwise, in all material respects, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to and the making of Revolving Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Company shall be in compliance with the covenants set forth in Sections 6.12 and 6.13 on a pro forma basis in accordance with Section 1.04(b), (iv) the sum Company shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section 2.21 and (v) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Total Commitments then Administrative Agent, to give effect to the provisions of this Section 2.21.
(d) Upon effectiveness of an Incremental Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a “Lender” and a “Revolving Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders and Revolving Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders and Revolving Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in effect the event such Incremental Revolving Lender already has a Commitment, shall increase) the Commitment of such Incremental Revolving Lender and (includingB) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, for in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentages of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of the effectiveness of any Incremental Commitments, each Revolving Lender shall be deemed to have assigned to each Incremental Revolving Lender holding such Incremental Commitments, and each such Incremental Revolving Lender shall be deemed to have purchased from each Revolving Lender, in an amount equal to the principal amount thereof (together with accrued and unpaid interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitments. Any Revolving Loans outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Revolving Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time such Revolving Loans will be repaid or refinanced with new Revolving Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Revolving Lenders (including the Incremental Revolving Lenders) after giving effect to the effectiveness of such Incremental Commitments; provided, however, that upon the occurrence of any Event of Default, each Incremental Revolving Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of other Revolving Lenders so that, after giving effect thereto, all Revolving Loans that are Eurocurrency Loans are held by the Revolving Lenders (including the Incremental Revolving Lenders) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, apply thereto. Any ABR Loans outstanding on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount date of the Incremental Commitment effectiveness of such Incremental Lender specified in Commitments shall either be prepaid on such Incremental Loan Activation Notice, date or refinanced on such date (subject to the terms satisfaction of this Agreement and applicable borrowing conditions) with Revolving Loans made on such date by the applicable Revolving Lenders (including the Incremental Loan Activation NoticeRevolving Lenders) in accordance with their Applicable Percentages. Nothing in this Section 2.27 shall be construed In order to obligate effect any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstandingsuch refinancing, (i) each relevant Incremental Revolving Lender shall will make available ABR Loans by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such amounts in immediately available Loans of such Type times a percentage obtained by dividing the amount of such Incremental Revolving Lender’s Incremental Commitment by the Aggregate Commitment (after giving effect to the effectiveness of the Incremental Commitments on such date) and (ii) such funds as will be applied to the prepayment of outstanding ABR Loans held by the Revolving Lenders other than the Incremental Revolving Lenders, and transferred by the Administrative Agent shall determine are necessary to the Revolving Lenders other than the Incremental Revolving Lenders, in order to causesuch amounts so that, after giving effect to such increased Commitments and the application of such amounts to prepay thereto, all ABR Loans under the Facility of other relevant Lenders, the Loans under the Facility to will be held ratably by all the Revolving Lenders with Commitments in the Facility in accordance with their then-current Applicable Percentages. On the date of the effectiveness of such Commitments Incremental Commitments, each Borrower will pay to the Administrative Agent, for the accounts of the Revolving Lenders receiving such prepayments, accrued and unpaid interest on the aggregate principal amount of the Revolving Loans of such Borrower being prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) The Administrative Agent shall notify Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and of the Applicable Percentages of the Revolving Lenders after giving effect to such increase, (ii) thereto and of the Company and any relevant Subsidiary Borrower shall be assignments deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay been made pursuant to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment2.21(e).
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrowers may, by written notice to the Administrative Agent from time to time notify time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall be on the same terms as the existing Revolving Facility Commitments and in all respects shall become a part of the Lenders designated by Revolving Facility hereunder on such terms. Such notice shall set forth (i) the Company and/or that additional lenders amount of the Incremental Revolving Facility Commitments being requested (which shall be added in minimum increments of $5 million and a minimum amount of $25 million or equal to this Agreement as the remaining Incremental Lenders with Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, and (iii) the date on which such Incremental Revolving Facility Commitments for are requested to become effective (the purpose of increasing the existing Commitments under the Facility “Increased Amount Date”).
(a “Commitment Increase”b) by executing The Borrowers and delivering each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such Incremental Revolving Lender. Each of the parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Revolving Facility by the amount of the Incremental Revolving Loan Activation Notice signed Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by such Lenders or such additional lenders the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and specifying furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the respective Incremental Commitments date of such Incremental Lenders effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Company, and (ii) the applicable Commitment Increase Date; providedAdministrative Agent shall have received legal opinions, that after giving effect board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such Commitment Increase additional documents and filings (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) amendments to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement Mortgages and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(cother Security Documents and title endorsement bringdowns) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in Amended and Restated Revolving Credit Agreement each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall determine are necessary in order apply to cause, after giving any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Berry Plastics Holding Corp)
Incremental Commitments. (a1) The Company Borrowers may at any time or from time to time notify after the Closing Date, by notice to the Administrative Agent that certain (an “Incremental Commitment Request”), request one or more increases in the amount of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility Aggregate Commitment (a “Commitment Increase”) by executing and delivering to under the Credit Facility (any such new Commitments, the “Incremental Commitments”), whereupon the Administrative Agent an shall promptly deliver a copy to each of the Lenders.
(2) On any Incremental Loan Activation Notice signed by such Lenders or such additional lenders Facility Closing Date on which any Incremental Commitments are effected through the establishment of any Commitment Increase, subject to the satisfaction of the terms and specifying conditions in this Section 2.12, (i) each Incremental Lender shall make its new Commitment available rateably to the respective Borrowers in an amount equal to its Incremental Commitments of such Incremental Lenders Commitment and (ii) each Incremental Lender shall become a Lender hereunder with respect to the applicable Incremental Commitment Increase and the Accommodations made pursuant thereto.
(3) Each Incremental Loan Request from the Borrowers pursuant to this Section 2.12 shall set forth the requested amount of the relevant Incremental Commitments. Incremental Commitments may be provided by any existing Lender (but no existing Lender will have an obligation to make any Incremental Commitment), or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”, and each such existing Lender or Additional Lender, the “Incremental Lenders”); provided that the Administrative Agent and the Swing Line Lender shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender or Additional Lender providing such Commitment Increases to the extent such consent, if any, would be required under Section 17.01(2) for an assignment of Commitments or Accommodations Outstanding, as applicable, to such Lender or Additional Lender.
(4) The terms of such Incremental Commitments shall be identical to the Commitments. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date; provided, that ”) of each of the following conditions:
(a) no Event of Default shall have occurred and be continuing or would exist after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.;
(b) Each each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice shall be in an aggregate principal amount outstanding at any time up to but that is not exceeding less than Cdn. $5,000,000 or U.S. $5,000,000, as applicable, and shall be in an increment of Cdn. $1,000,000 or U.S. $1,000,000, as applicable (provided that such amount may be less than Cdn. $5,000,000 or U.S. $5,000,000, as applicable, if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.12(4));
(c) the aggregate amount of the Incremental Commitment Commitments shall not exceed Cdn. $75,000,000;
(d) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (A) customary legal opinions, board resolutions and officers’ certificates substantially consistent with those delivered on the Closing Date and (B) reaffirmation agreements and/or such amendments to the Credit Documents as may be reasonably requested by the Administrative Agent in order to ensure that such incremental Debt is provided with the benefit of the applicable Credit Documents; and
(e) such other conditions as the Borrowers, each Incremental Lender providing such Incremental Lender specified Commitments and the Administrative Agent shall agree.
(5) Incremental Commitments shall become Commitments (or in the case of an Incremental Commitment to be provided by an existing Lender, an increase in such Lender’s applicable Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrowers, the other Loan Activation NoticeParties, subject each Incremental Lender providing such Commitments and the Administrative Agent. The Incremental Amendment may effect such amendments to the terms of this Agreement and the applicable Incremental other Loan Activation Notice. Nothing Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provisions of this Section 2.27 shall be construed to obligate 2.12(5), without the consent of any Lender to execute an Incremental or any other Loan Activation NoticeParty.
(c6) On Upon any Commitment Increase DateIncremental Facility Closing Date on which Incremental Commitments are effected, (a) each of the existing Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the event any Loans under the Accommodations Outstanding on such Incremental Facility are then outstanding, (i) each relevant Incremental Lender Closing Date as shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are be necessary in order to causethat, after giving effect to all such increased Commitments assignments and the application of purchases, such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to Accommodations will be held by existing Lenders and Incremental Lenders ratably by all Lenders with Commitments in the Facility in accordance with such their Commitments after giving effect to the addition of such increaseIncremental Commitments, (iib) the Company and any relevant Subsidiary Borrower each Incremental Commitment shall be deemed for all purposes a Commitment and each Accommodation made thereunder shall be deemed, for all purposes, an Accommodation and (c) each Incremental Lender shall become a Lender with respect to have prepaid the Incremental Commitments and reborrowed all outstanding Loans under matters relating thereto. The parties hereto hereby agree that the minimum borrowing and repayment requirements in Article 3 of this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay not apply to the relevant Lenders transactions effected pursuant to the amounts, if any, payable under Section 2.22 as a result of such prepaymentimmediately preceding sentence.
Appears in 1 contract
Samples: Credit Agreement (Vail Resorts Inc)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent from time to time notify after the Closing Date, and prior to the Revolving Facility Loan Maturity Date, request that the Incremental Amount be provided by one or more Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent that certain (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Lenders designated by the Company and/or that additional lenders Incremental Revolving Facility Commitments being requested (which shall be added in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to this Agreement as the remaining Incremental Lenders with Amount), (ii) the date on which such Incremental Revolving Facility Commitments for are requested to become effective (the purpose of increasing the existing Commitments under the Facility (a “Commitment IncreaseIncreased Amount Date”) by executing and delivering (iii) whether such Incremental Revolving Loan Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing terms different from the Revolving Facility Loans (“Other Revolving Loans”).
(b) The Borrower and each Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Loan Activation Notice signed by Assumption Agreement and such Lenders or other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Revolving Facility Commitments; provided, that (i) the respective Incremental Commitments Other Revolving Loans shall have the same guarantees as and rank pari passu or junior in right of payment and of security with the Revolving Facility Loans and, except as to pricing and final maturity date, shall have (x) the same terms as the Revolving Facility Loans, as applicable, and (y) intercreditor arrangements and such Incremental Lenders other terms as shall be reasonably satisfactory to the Administrative Agent and (ii) the applicable Commitment Increase final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Loan Maturity Date; provided. Each of the parties hereto hereby agrees that, that after giving effect to such Commitment Increase (including upon the incurrence effectiveness of any Incremental Loans Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the applicable Commitment Increase Date date of such effectiveness, both before and use of proceeds thereof) after such effectiveness, (x) there is no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 Borrower shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increasePro Forma Compliance, (ii) the Company Administrative Agent shall have received a certificate to that effect dated such date and any relevant Subsidiary executed by a Responsible Officer of the Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement containing calculations in reasonable detail demonstrating compliance with the requirement contained in preceding subclause (i)(y), and (iii) the Company Administrative Agent shall have received customary legal opinions, board resolutions and any other customary closing certificates and documentation as required by the relevant Subsidiary Borrower shall pay Incremental Assumption Agreement and, to the relevant Lenders extent required by the amountsAdministrative Agent, if any, payable consistent with those delivered on the Closing Date under Section 2.22 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Revolving Facility Loans in respect of the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a result pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of such prepaymentEurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
Appears in 1 contract
Incremental Commitments. (a) The Company Borrower may at any time or from time to time notify after the Effective Date, by notice to the Administrative Agent that certain Agent, request one or more increases in the amount of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (each such increase, a “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying ), provided that (i) both at the respective time of any such request and upon the effectiveness of any Incremental Commitments of such Incremental Lenders Amendment referred to below, (x) no Default shall exist and (y) all representations and warranties in this Agreement or any other Loan Document shall be true and correct in all material respects and (ii) the applicable aggregate amount of all Commitment Increases pursuant to this Section 2.20, when added to the initial aggregate amount of the Lenders’ Commitments on the Effective Date, shall not exceed $1,000,000,000. Each Commitment Increase Date; shall be in an aggregate principal amount that is not less than $20,000,000 (provided that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Commitment Increase. Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 9.04 for an assignment of Revolving Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement, executed by the Borrower, each Lender agreeing to provide such Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (it being understood that all references to “the occasion of any Borrowing” or “issuance, amendment, renewal or extension of a Letter of Credit” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Commitment Increases, unless it so agrees. Upon each increase in the Commitments pursuant to this Section 2.20, (a) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Commitment Increase (each, a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender (including each such Commitment Increase (including Lender) will equal the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum percentage of the Total Commitments then Commitment represented by such Lender’s Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in effect (includingCommitments), for which prepayment shall be accompanied by accrued interest on the avoidance of doubtRevolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.15. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, Incremental Commitments) pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not exceed $2 billionapply to the transactions effected pursuant to the immediately preceding sentence.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) This Section 2.20 shall supersede any provisions in Section 2.17 or 9.02 to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Noticecontrary.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepayment.
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Incremental Commitments. (a) The Company Borrower and any one or more Lenders (including New Lenders) may from time to time notify agree that such Lenders shall increase the Administrative Agent that certain amount of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with their Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering to the Administrative Agent an Incremental Loan Increased Facility Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Incremental Commitments amount of such Incremental Lenders incremental Commitments and (ii) the applicable Commitment Increase Increased Facility Closing Date; provided, provided that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (xA) no Default or Event of Default exists or shall exist immediately before or after giving effect to such incremental Commitments; (B) the Borrower shall be continuing in compliance with the then-applicable financial covenants set forth in Section 7.1, computed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements shall have been (or shall have been required to be) delivered pursuant to Section 6.1 (and assuming any undrawn Commitments are fully drawn); (C) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on the applicable Increased Facility Closing Date immediately prior to, and after giving effect to, such incremental Commitments; (D) the terms of the incremental Commitments shall be identical to the terms of the then-existing Commitments (including the maturity date in respect thereof); and (E) in connection with any such increase, the Borrower shall provide the Administrative Agent with such certificates and legal opinions as the Administrative Agent may reasonably request. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Commitments obtained after the Restatement Effective Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $10,000,000 and (y) no more than three Increased Facility Closing Dates may be selected by the sum of Borrower after the Total Commitments then Restatement Effective Date. No Lender shall have any obligation to participate in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.any increase described in this paragraph unless it agrees to do so in its sole discretion. 36
(b) Each Incremental Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.23(a) shall execute a New Lender that is Supplement (each, a signatory “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to an Incremental Loan Activation Notice severally agrees, on the terms same extent as if originally a party hereto and conditions shall be bound by and entitled to the benefits of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date, the Borrower shall borrow Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the event any Loans under the Facility are case of Eurodollar Loans, of each Eurodollar Tranche) which would then outstanding, have been outstanding from such Lender if (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to Type or Eurodollar Tranche had been borrowed or effected on such increased Commitments Increased Facility Closing Date and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Rate applicable to any relevant Subsidiary Borrower Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay amended to the relevant Lenders extent (but only to the amounts, if any, payable under Section 2.22 as a result extent) necessary to reflect the existence of the incremental Commitments evidenced thereby. Any such prepaymentdeemed amendment may be effected in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
Appears in 1 contract
Samples: Credit Agreement (World Wrestling Entertainmentinc)
Incremental Commitments. (a) The Company may Borrower may, by written notice to the Administrative Agent, at any time and from time to time notify time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion. Any such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $5.0 million or equal to the remaining amount available pursuant to the foregoing sentence, as applicable, or such lesser amount as approved by the Administrative Agent that certain Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (any such date, an “Increased Amount Date”), (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term B Loan Commitments or commitments to make term loans with pricing and/or amortization and/or maturity and/or other terms different from the Lenders designated by Term B Loans (“Other Term Loans”), and (iv) in the Company case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments fees and/or maturity and/or other terms different from Revolving Loans under the Revolving Facility Commitments (a “Commitment IncreaseOther Revolving Loans”).
(b) by executing The Borrower and delivering each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Activation Notice signed by Commitment of such Lenders or Incremental Term Lender and/or Incremental Revolving Facility Commitment of such additional lenders and specifying Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided that (i) except as to pricing, amortization, participation in mandatory prepayments and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the respective Borrower and the Incremental Commitments of Term Lenders in their sole discretion), the Other Term Loans shall have (x) substantially the same terms as the Term B Loans, as applicable, or (y) such Incremental Lenders and other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (iv) except as to pricing, participation in mandatory prepayments and commitment reductions, and final maturity date (which shall, subject to clause (v) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) substantially the same terms as the Revolving Facility Loans under the Revolving Facility Commitments or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date applicable Commitment Increase Dateto Revolving Facility Commitments and (vi) any Incremental Revolving Facility Lender shall be reasonably satisfactory to the Borrower and the Administrative Agent; providedprovided further that the Yield in respect of any Other Term Loan incurred prior to the date that is eighteen (18) months after the Closing Date may not exceed the Yield for the Term B Loans by more than 1/2 of 1% or if it does so exceed such Yield, the Applicable Margin for the Term B Loans shall be increased so that the Yield in respect of such Other Term Loan incurred prior to the date that is eighteen (18) months after giving effect to such Commitment Increase (including the incurrence Closing Date is no more than 1/2 of 1% higher than the Yield for the Term B Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loans Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the applicable Commitment Increase Date and use date of proceeds thereof) (x) such effectiveness, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (yii) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 Borrower shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, Pro Forma Compliance after giving effect to such increased Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such amounts to prepay Loans under date, (iii) the Facility of other relevant Lenderscondition set forth in Section 4.01(b) shall have been satisfied, and (iv) the Loans under the Facility Borrower shall have delivered or caused to be held ratably delivered such officer’s certificate, legal opinions, board resolutions, secretary’s certificates or other similar documents reasonably requested by the Administrative Agent in connection with any such transaction.
(d) Incremental Term Loans and Incremental Revolving Facility Commitments and all Lenders with Commitments obligations in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower respect thereof shall be deemed to have prepaid and reborrowed all outstanding Loans Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations under this Agreement and the other Loan Documents. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (iiii) all Incremental Term Loans (other than Other Term Loans) in the Company form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans, as applicable, on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments with respect to any relevant Subsidiary Revolving Facility, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans under such Revolving Facility on a pro rata basis. The Borrower agrees that Section 2.16 shall pay apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the relevant Lenders Administrative Agent to effect the amounts, if any, payable under Section 2.22 as a result of such prepaymentforegoing.
Appears in 1 contract
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement as Each Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing Lender on, and delivering subject to the Administrative Agent occurrence of, the Second Amendment Effective Date hereby severally agrees to make Loans to the Borrower in a single Borrowing in an aggregate principal amount not to exceed such Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying (i) the respective Lender’s Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans as set forth opposite its name on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billionAnnex I attached hereto.
(b) Each The Incremental Lender Lenders, the Lenders, the Facility Agent, the Security Trustee, the Borrower and the Guarantors agree that is a signatory this Second Amendment effects the provisions of Section 2.21 of the Credit Agreement as amended by this Second Amendment with respect to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice Commitments and shall constitute a Joinder Agreement pursuant to and in an aggregate principal amount outstanding at any time up to but not exceeding the amount accordance with Section 2.21 of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of Credit Agreement as amended by this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation NoticeSecond Amendment.
(c) Upon the incurrence of a Loan pursuant to this Second Amendment, such Loan shall be subject to the interest rates (including the Margin) and terms, repayment, voluntary prepayment terms and mandatory prepayment terms applicable to the Loans as set forth in the Credit Agreement.
(d) On any Commitment Increase (and subject to the occurrence of) the Second Amendment Effective Date, each Incremental Lender party hereto to the extent provided in this Second Amendment and the event any Loans Credit Agreement, shall have the rights and obligations of a Lender thereunder and under the Facility are then outstanding, other applicable Loan Documents.
(e) The Borrower and each Guarantor acknowledges and agrees that (i) the Borrower shall be liable for all Obligations with respect to all Loans made to the Borrower pursuant to this Second Amendment and (ii) all such Obligations (including all such Loans pursuant to this Second Amendment) shall constitute Guaranteed Obligations and shall be entitled to the benefits of the Security Documents and the Guarantees.
(f) The Incremental Commitment of each relevant Incremental Lender shall make available to automatically terminate upon the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application making of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under pursuant to this Second Amendment on the Facility Second Amendment Effective Date.
(g) The proceeds of the Loans pursuant to this Second Amendment shall be held ratably used by all Lenders with Commitments the Borrower solely for the purposes set forth in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company second recital of this Second Amendment and any relevant Subsidiary Borrower shall amounts repaid, prepaid or cancelled may not be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentreborrowed.
Appears in 1 contract
Incremental Commitments. (a) The Company may Borrower Representative may, on behalf of any Borrower, at any time or from time to time notify after the Closing Date, by notice to Administrative Agent that certain (an “Incremental Loan Request”), request (A) one or more new commitments which may be of the Lenders designated by the Company and/or that additional lenders shall be added to this Agreement same Class as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility any outstanding Term Loans (a “Commitment Term Loan Increase”) by executing and delivering to or a new Class of term loans (collectively with any Term Loan Increase, the Administrative Agent an “Incremental Loan Activation Notice signed by such Lenders Term Commitments”) and/or (B) one or such additional lenders and specifying more increases in the amount of the Revolving Commitments (i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable a “Revolving Commitment Increase Date; providedIncrease” and, that after giving effect to such Commitment Increase (including the incurrence of collectively with DOC ID - 36220401.1 any Incremental Loans on Term Commitments, the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, “Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees”), on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding not to exceed the sum of (A) the greater of (1) $63,000,000 and (2) 100% of Consolidated Adjusted EBITDA for the most recently completed Test Period (calculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the amount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the “Fixed Incremental Amount”) plus (B) an unlimited amount (the “Incremental Incurrence-Based Amount”), so long as on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Loans (assuming the full amount of any such Indebtedness in the form of a revolving credit facility is drawn) (without netting the cash proceeds of any borrowing under any such Incremental Term Loans or Revolving Commitment Increase not promptly applied for the specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the Total Net Leverage Ratio does not exceed 4.25:1.00 as of the last day of the most recently completed Test Period (calculated on a Pro Forma Basis) (this clause (B), the “Incremental Ratio Debt Basket”), plus (C) any voluntary prepayments and buybacks (limited to the actual amount of cash paid) of the Initial Term Loans and the Incremental Term Loans and voluntary prepayments of the Revolving Loans (to the extent accompanied by permanent commitment reductions thereto), payments utilizing the yank-a-bank provisions of the Credit Documents, in each case prior to such time other than any such voluntary prepayments (and commitment reductions), and buybacks to the extent financed with the proceeds of long term Indebtedness (other than any revolving Indebtedness) or any Specified Equity Contribution (this clause (C), the “Prepayment Amount”) (the sum of (A), (B), and (C) being referred to herein as the “Incremental Cap”), whereupon Administrative Agent shall promptly deliver a copy of such request to each of the Lenders; provided For purposes of the foregoing, (I) the Borrower Representative may elect to use the Incremental Incurrence-Based Amount prior to the Fixed Incremental Amount and the Prepayment Amount, and if the Fixed Incremental Amount and/or the Prepayment Amount, on the one hand, and the Incremental Incurrence-Based Amount, on the other hand, are each available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected to use the Incremental Incurrence-Based Amount first and (II) the Incremental Incurrence-Based Amount will be calculated without regard to any incurrence of Indebtedness under the Fixed Incremental Amount and/or Prepayment Amount concurrently with the incurrence of any amounts in reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Incremental Credit Facilities incurred other than under the Incremental Incurrence-Based Amount may be re-designated at any time, as the Borrower Representative may elect from time to time, as incurred under the Incremental Incurrence-Based Amount if the Borrowers meet the applicable ratio under the Incremental Incurrence-Based Amount at such time on a pro forma basis, at any time up subsequent to but not exceeding the amount of the Incremental Commitment incurrence of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice.
(c) On any Commitment Increase Date, in the event any Loans under the Credit Facility are then outstanding, (i) each relevant Incremental Lender shall make available by written notice to the Administrative Agent on such amounts in immediately available funds date. (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount and/or the Prepayment Amount, as applicable, as of the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application date of such amounts to prepay Loans under redesignation by the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result amount of such prepaymentIndebtedness so redesignated).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated Borrower may, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent from time to time, request that the Total Commitment (and, in connection therewith, the L/C Commitment) be increased by an amount not to exceed the Incremental Loan Activation Notice signed Commitment Amount at such time. Such notice shall set forth the amount of the requested increase in the Total Commitment (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Commitment Amount) and, if applicable, the L/C Commitment, and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or prior to the Maturity Date), and shall offer each Revolving Credit Lender the opportunity to increase its Commitment by its Pro Rata Percentage of the proposed increased amount. Each Lender shall, by notice to the Borrower and the Administrative Agent given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the Administrative Agent shall have delivered such notice, the Lenders shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the Total Commitment requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such additional lenders and specifying bank or other entity being called an “Augmenting Lender”), which may include any Lender, to extend Commitments or increase their existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that, notwithstanding the foregoing, (i) no person shall become a Lender and no Lender’s Commitment shall increase pursuant to this Section 2.22 without the respective Incremental Commitments prior written consent of such Incremental Lenders the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the applicable L/C Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) Issuing Bank shall not exceed $2 billionbe increased pursuant to the Section 2.22 without the prior written consent of such Issuing Bank. The Borrower and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Commitment and/or its status as a Lender hereunder. Any increase in the Commitment may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the Total Commitment pursuant to this Section 2.22, the outstanding Revolving Loans (if any) are held by the Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of such Incremental Lender specified the Administrative Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding Revolving Loans to Increasing Lenders and Augmenting Lenders or (iii) by any combination of the foregoing. Any prepayment or assignment described in such Incremental Loan Activation Notice, this paragraph (b) shall be subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 shall be construed to obligate any Lender to execute an Incremental Loan Activation Notice2.15, but otherwise without premium or penalty.
(c) On any Commitment Increase DateNotwithstanding the foregoing, no increase in the event any Loans Total Commitment shall become effective under the Facility are then outstandingthis Section 2.22 unless, (i) each relevant Incremental Lender on the date of such increase, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall make available to be satisfied and the Administrative Agent shall have received a certificate to that effect dated such amounts in immediately available funds date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) such customary closing documentation as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay to the relevant Lenders the amounts, if any, payable under Section 2.22 as a result of such prepaymentreasonably requested.
Appears in 1 contract
Samples: Credit Agreement (Laboratory Corp of America Holdings)
Incremental Commitments. (a) The Company may from time to time notify Upon the Administrative Agent that certain satisfaction of the Lenders designated by following conditions (such date of satisfaction, the Company and/or that additional lenders “Incremental Facility Effective Date”), the total Revolving Facility Commitments shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) increased by executing and delivering an amount equal to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying Amount:
(i) the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall have occurred and be continuing and or shall result after giving effect to the Incremental Facility;
(yii) the sum Borrowers shall have paid to the Administrative Agent for the account of each Incremental Revolving Facility Lender (other than Defaulting Lenders) having Incremental Revolving Facility Commitments, ratably in accordance with each such Lender’s Incremental Revolving Facility Percentage, an accordion fee (the “Incremental Facility Exercise Fee”) equal to the product of (i) the total Incremental Revolving Facility Commitments multiplied by (ii) 0.125% per annum;
(iii) the termination of the Total Commitments then AB Receivables Financing and the payment in effect (includingfull or provision for payment in full of all obligations owing to the purchasers under the AB Receivables Financing, for in each case in a manner reasonably acceptable to the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.Administrative Agent;
(biv) Each the Administrative Agent shall maintain a senior perfected security interest in substantially all of the AB Receivables owned by Wise; and
(v) the Administrative Agent shall have received a written notice signed by a Responsible Officer of each Borrower, notifying the Administrative Agent of the Borrowers’ election to exercise the Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms Facility and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) certifying as to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment of such Incremental Lender specified in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing matters set forth in this Section 2.27 shall be construed to obligate any Lender to execute an 2.15. On the Incremental Loan Activation Notice.
(c) On any Commitment Increase Facility Effective Date, in the event any Loans under the Facility are then outstanding, (i) each relevant Incremental Revolving Facility Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increased Commitments increase and the application use of such amounts to prepay Loans under the Facility of make payments to such other relevant Lenders, each Lender’s portion of the outstanding Revolving Facility Loans under of all the Lenders to equal its Pro Rata Share of such outstanding Revolving Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increaseLoans, and (ii) the Company and any relevant Subsidiary Borrower Borrowers shall be deemed to have prepaid repaid and reborrowed all outstanding Revolving Facility Loans under this Agreement and as of the Incremental Facility Effective Date (iiiwith such reborrowing to consist of the Types of Revolving Facility Loans, with related Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, in accordance with the requirements of Section 2.03). The deemed payments made pursuant to clause (ii) of the Company and any relevant Subsidiary immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurodollar Rate Loan, shall be subject to indemnification by the applicable Borrower shall pay pursuant to the relevant Lenders provisions of Section 3.05 if the amountsdeemed payment occurs other than on the last day of the related Interest Periods. Notwithstanding any provision herein or in any other Loan Document to the contrary, if anyno Revolving Facility Loans, payable under Section 2.22 other Credit Events or any other financial accommodations advanced in excess of the total Revolving Facility Commitments as in effect immediately prior to the Incremental Facility Effective Date shall be secured by any Real Property unless and until the flood diligence required by Sections 6.02 and 10.01 has been completed in a result of manner satisfactory to each Lender, as confirmed by written notice from each such prepaymentLender to the Administrative Agent and the Borrowers after the Incremental Facility Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Constellium N.V.)
Incremental Commitments. (a) The Company may Borrower may, from time to time notify after the Administrative Agent that certain of the Lenders designated Closing Date, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying request the establishment of (i) one or more new term loan commitments (the respective Incremental Commitments of such Incremental Lenders and “New Term Loan Commitments”), (ii) one or more additional tranches of revolving credit commitments (the applicable “Additional Revolving Credit Commitments”) and/or (iii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments established following the First Amendment Effective Date not in excess of the Incremental Facility Amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may seek Incremental Commitments from existing Lenders or from by any other bank, financial institution, other institutional lender or other Person that is an eligible assignee pursuant to Section 13.6(b) (any such other Person being called an “Additional Lender”); provided, that after giving effect the Administrative Agent (and, solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Commitment Increase (including the incurrence of Additional Lender’s providing any Incremental Commitments to the extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment.
(b) Such Incremental Commitment shall become effective as of such Increased Amount Date; provided that (1) the representations and warranties set forth herein and in the other Credit Documentation shall be true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Commitments (and the Loans made pursuant thereto) shall be secured on a pari passu basis with the Term B Loans, the Term B-1 Loans, the Revolving Credit Commitments and the Revolving Credit Loans and shall be secured only by the Collateral securing the Obligations; (3) no Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the applicable Commitment Increase Date and use of proceeds thereof) Increased Amount Date); (x4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and to the making of any Loans pursuant thereto; provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the absence of a Default or Event of Default shall not constitute a condition to the making of such Incremental Commitments; (5) the Incremental Commitments and related Loans made pursuant thereto shall be continuing effected pursuant to one or more amendments (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Parent Guarantors, the Borrower, each Lender and each Additional Lender providing such New Term Loan Commitments, Additional Revolving Credit Commitments or Revolving Credit Commitment Increase, as applicable (each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d)), and the Administrative Agent; and (y6) the sum Borrower shall make any payments required pursuant to Section 2.12 in connection with the Incremental Commitments, as applicable. Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from Term Loans outstanding on the date on which such New Term Loans are made shall be designated as a separate Class of Term Loans for all purposes of this Agreement. Each of the Total parties hereto hereby agrees that each Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.17.
(c) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (i) the Maturity Date of any New Term Loans shall not be earlier than the then-existing Latest Maturity Date with respect to any Existing Class of Term Loans, (ii) any New Term Loans shall not have a shorter Weighted Average Life than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (iii) if the Initial Yield on any New Term Loans exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans and (iv) any New Term Loans shall otherwise have the same terms and conditions of the Term Loans then in effect or such other terms and conditions reasonably satisfactory to the Administrative Agent. On any Increased Amount Date on which any New Term Loan Commitments of any Class are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Class, and (ii) each New Term Loan Lender of any Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto.
(d) Notwithstanding the foregoing, without the prior written consent of the Required Lenders or the Required Revolving Credit Lenders, (A) any Revolving Credit Commitment Increase shall be on the exact same terms (including with respect to commitment reductions and interest rates) as the Fourth Amendment Extended Revolving Credit Commitments, except for such differences (including with respect to maturity date) that are expressly permitted by the following subclause (B), and (B) (i) the Maturity Date of any Additional Revolving Credit Commitments shall not be earlier than, and shall not require mandatory commitment reduction (except ratably with the Revolving Credit Commitments and the Revolving Credit Commitments) prior to, the then-existing Latest Maturity Date with respect to anythe latest maturing Existing Class of Revolving Credit Loans, (ii) if the Initial Yield on any Additional Revolving Credit Commitments (and related Revolving Credit Loans) that expire on or before the one-year anniversary of the Latest Maturity Date with respect to anythe latest maturing Existing Class (or Classes) of Revolving Credit Commitments (and, in each case, any related Revolving Credit Loans) (such expiration of Additional Revolving Credit Commitments determined without giving effect to contingencies that would cause such expiration to be earlier than otherwise stated unless and until such contingency occurs), exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) by more than 50 basis points, then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) shall automatically be increased by the Yield Differential, effective upon the effectiveness of such Additional Revolving Credit Commitments, (iii) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Revolving Credit Loans under any Additional Revolving Credit Commitments shall be made on a pro rata basis with any borrowings and repayments of the Revolving Credit Loans then in effect (the mechanics for which may be implemented through the applicable Incremental Amendment and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Loans then in effect) and (iv) any Additional Revolving Credit Commitments shall otherwise have the same terms and conditions of the Revolving Credit Commitments then in effect (or such other terms and conditions reasonably satisfactory to the Administrative Agent, including, for the avoidance of doubt, Incremental doubt any “MFN” protection applicable to such Additional Revolving Credit Commitments) shall not exceed $2 billion.
(be) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of the Incremental Commitment parties hereto hereby agrees that the Administrative Agent may, with the consent of such Incremental Lender specified in such Incremental Loan Activation Noticethe Borrower (not to be unreasonably withheld), subject take any and all action as may be reasonably necessary to the terms of this Agreement and ensure that all New Term Loans that, pursuant to the applicable Incremental Amendment, are to be of the same Class of an Existing Class of Term Loans, when originally made, are included in each Borrowing of such Existing Class of Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Term Loans to be converted into a Borrowing of Term Loans that are ABR Loans on the date the applicable New Term Loan Activation Noticeis made, or by allocating a portion of each such New Term Loan to each outstanding Borrowing of LIBOR Term Loans on a pro rata basis. Nothing in this Section 2.27 Any conversion of Borrowing of LIBOR Term Loans to Term Loans that are ABR Loans required by the preceding sentence shall be construed subject to obligate Section 2.12. If any Lender New Term Loan is to execute be allocated to an Incremental Loan Activation Notice.
(c) On any Commitment Increase Dateexisting Interest Period for a Borrowing of LIBOR Term Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the event any Loans under the Facility are then outstandingapplicable Incremental Amendment. In addition, (i) each relevant Incremental Lender shall make available to the Administrative Agent extent any New Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.5(b) required to be made after the making of such amounts New Term Loans shall be ratably increased by the aggregate principal amount of such New Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation.
(f) Upon each Revolving Credit Commitment Increase pursuant to this Section, each Revolving Credit Lender immediately available funds as prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Administrative Agent shall determine are necessary Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in order respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to causehave assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such increased deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the application date of such amounts increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to prepay the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Facility of other relevant Lenders, the Revolving Credit Loans under the Facility to be held ratably being prepaid and any costs incurred by all Lenders with Commitments in the Facility any Lender in accordance with such Commitments after giving effect to such increaseSection 2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, (ii) the Company pro rata borrowing and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans under pro rata payment requirements contained elsewhere in this Agreement and (iii) the Company and any relevant Subsidiary Borrower shall pay not apply to the relevant Lenders transactions effected pursuant to the amountsimmediately preceding sentence. This Section 2.17 shall supersede any provisions in Section 5.2, if any, payable under Section 2.22 as a result of such prepayment13.1 or 13.8(a) to the contrary.
Appears in 1 contract
Incremental Commitments. (a) The Company Borrower may on one or more occasions, by written notice to the Administrative Agent, request (i) Incremental Term Commitments in an aggregate amount not to exceed the Incremental Commitment Amount from one or more financial institutions willing to become Incremental Term Lenders, (ii) Incremental Revolving Commitments in an aggregate amount not to exceed the Incremental Commitment Amount from one or more financial institutions willing to become Incremental Revolving Lenders and (iii) Incremental Tranche A LC Commitments in an aggregate amount not to exceed the Incremental Commitment Amount from one or more financial institutions willing to become Incremental Tranche A LC Lenders, provided that each Incremental Lender, if not already a Lender hereunder, shall be reasonably acceptable to (x) the Administrative Agent, (y) in the case of Incremental Revolving Lenders and Incremental Tranche A LC Lenders, each Issuing Bank and (z) in the case of Incremental Revolving Lenders, the Swingline Lender. Such notice shall set forth (A) the amount of the Incremental Term Commitments, Incremental Revolving Commitments or Incremental Tranche A LC Commitments, as applicable, being requested (which shall be in integral multiples of $1,000,000 and not less than $25,000,000, or equal to the remaining Incremental Commitment Amount), (B) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (which time to time notify periods for notice may be modified or waived by the Administrative Agent in its discretion)) and (C) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans on terms identical to the Term Loans outstanding on the date of making of such new term loans or commitments to make term loans with economic terms (such as pricing, maturities and amortization schedules) that certain of are different from such outstanding Term Loans (but otherwise on the Lenders designated by the Company and/or that additional lenders terms identical to such outstanding Term Loans) (“Other Term Loans”).
(b) The Borrower and each Incremental Lender shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing execute and delivering deliver to the Administrative Agent an appropriate Incremental Loan Activation Notice signed by Credit Assumption Agreement and such Lenders or such additional lenders and specifying (i) other documentation as the respective Incremental Commitments of such Incremental Lenders and (ii) the applicable Commitment Increase Date; provided, that after giving effect Administrative Agent shall reasonably specify to such Commitment Increase (including the incurrence of any Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) shall not exceed $2 billion.
(b) Each Incremental Lender that is a signatory to an Incremental Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of evidence the Incremental Commitment of such Incremental Lender specified in such Lender. Each Incremental Loan Activation Notice, subject to Term Assumption Agreement shall specify the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 Term Loans to be made thereunder; provided that, without the prior written consent of the Term Lenders holding a majority of the principal amount of the Term Loans outstanding immediately prior to the effectiveness of such Incremental Term Assumption Agreement, (i) the final maturity date of any [[NYCORP:2679581v6:4454W:02/23/07--03:20 p]] Other Term Loans shall be construed no earlier than the Term Maturity Date, (ii) the average life to obligate maturity of any Lender Other Term Loans shall be no shorter than the average life to execute an maturity of such Term Loans and (iii) if the initial yield on any Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the Adjusted LIBOR margin on the Other Term Loans and (y) if the Other Term Loans are initially made at a discount or the Incremental Loan Activation NoticeTerm Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for making such Loans (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for Eurodollar Term Loans, then the Applicable Rate then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans.
(c) On The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Commitment Increase DateIncremental Credit Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary or advisable, in the event judgment of the Administrative Agent, to reflect the existence and terms of each Incremental Commitment evidenced thereby and any increase in the Applicable Rate required by paragraph (b) of this Section. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation reasonably requested by the Administrative Agent consistent with those delivered on the Closing Date pursuant to Section 4.01.
(e) Upon effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans under and Commitments of the Facility are then outstandingapplicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Loans and Commitments of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Loans and Commitments of the applicable Class) hereunder. Without limiting the generality of the foregoing, (i) each relevant upon the effectiveness of an Incremental Revolving Commitment of any Incremental Revolving Lender, such Incremental Revolving Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving effect to such increase, (ii) the Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all acquired, on the terms set forth in Section 2.05, participations in [[NYCORP:2679581v6:4454W:02/23/07--03:20 p]] outstanding Loans under this Agreement Revolving Letters of Credit equal to such Incremental Revolving Lender’s Applicable Revolving Percentage and (iiiii) upon the Company effectiveness of an Incremental Tranche A LC Commitment of any Incremental Tranche A LC Lender, such Incremental Tranche A LC Lender (x) shall deposit in the Tranche A Deposit Account an amount in dollars equal to such Incremental Tranche A LC Lender’s Incremental Tranche A LC Commitment (the amount of such deposit actually made being referred to herein as the “Incremental Tranche A Deposit” of such Incremental Tranche A LC Lender), (y) shall be bound by the agreements and acknowledgements of the Tranche A LC Lenders set forth in Section 2.05(o), 2.05(p) and 2.05(q) (and shall be deemed to have granted a security interest in its Incremental Tranche A Deposit as set forth in Section 2.05(o)) and (z) shall be deemed to have acquired, on the terms set forth in Section 2.05, participations in outstanding Tranche A Letters of Credit equal to such Incremental Tranche A LC Lender’s Applicable Tranche A LC Percentage. For the avoidance of doubt, upon the effectiveness of any relevant Subsidiary Borrower Incremental Revolving Commitment or any Incremental Tranche A LC Commitment (and the concomitant funding of the Incremental Tranche A Deposit), the Applicable Revolving Percentage and the Applicable Tranche A LC Percentage, as the case may be, shall pay automatically be adjusted to reflect such effectiveness (and such funding).
(f) Each of the relevant Lenders parties hereto hereby agrees that the amountsAdministrative Agent may take any and all action that it deems necessary or advisable to ensure that all Incremental Term Loans (other than the Other Term Loans), if anywhen originally made, payable under Section 2.22 are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis, even though as a result thereof such Incremental Term Loan may effectively have a shorter Interest Period than the Term Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing then, subject to Section 2.13(c), the interest rate applicable to such Incremental Term Loan for the remainder of such prepaymentInterest Period shall equal the Adjusted LIBO Rate for a period approximately equal to the remainder of such Interest Period (as determined by the Administrative Agent two Business Days before the date such Incremental Term Loan is made) plus the Applicable Rate.
Appears in 1 contract
Samples: Credit Agreement (Healthsouth Corp)
Incremental Commitments. (a) The Company may from time to time notify the Administrative Agent that certain of the Lenders designated on one or more occasions, by the Company and/or that additional lenders shall be added to this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Commitment Increase”) by executing and delivering written notice to the Administrative Agent (which shall promptly deliver a copy to each of the Lenders), request that (i) Incremental Revolving Commitments and/or (ii) Incremental Term Commitments be established, in each case in an amount not less than $25,000,000; provided that the aggregate amount of all Incremental Loan Activation Notice signed by such Lenders or such additional lenders and specifying Commitments established hereunder during the term of this Agreement shall not exceed $200,000,000. Such notice shall set forth (i) the respective amount of the Incremental Revolving Commitments of such or the Incremental Lenders Term Commitments, as applicable, being requested and (ii) the applicable date on which such Incremental Revolving Commitments or Incremental Term Commitments, as applicable, are requested to become effective (which shall be not fewer than 10 days or more than 30 days after the date of such notice or such other date as shall be mutually agreed by the Administrative Agent and the Company). Incremental Commitments may be provided by any Lender or by one or more banks or other financial institutions identified by the Company; provided that (A) any Lender approached to provide any Incremental Revolving Commitment Increase Date; providedor Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (B) any Person that after giving effect the Company proposes to become an Incremental Lender, if such Commitment Increase (including Person is not already a Lender hereunder, shall be subject to the incurrence approval of the Administrative Agent and, in the case of any proposed Incremental Loans on the applicable Commitment Increase Date and use of proceeds thereof) Revolving Lender, each Issuing Bank (x) no Default or Event of Default shall be continuing and (y) the sum of the Total Commitments then in effect (including, for the avoidance of doubt, Incremental Commitments) which approval shall not exceed $2 billion.
(b) Each be unreasonably withheld). The Company and each Incremental Lender that is a signatory to shall execute and deliver an Incremental Loan Activation Notice severally agrees, on Commitment Agreement and such other documentation as the terms and conditions of this Agreement, Administrative Agent shall reasonably specify to make revolving credit loans (each, an “Incremental Loan”) to the Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an aggregate principal amount outstanding at any time up to but not exceeding the amount of evidence the Incremental Commitment of such Incremental Lender specified and/or its status as a Lender hereunder.
(b) The terms and conditions of any Incremental Revolving Commitment and loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and the Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in such Incremental Loan Activation Notice, subject to the terms of this Agreement and the applicable Incremental Loan Activation Notice. Nothing in this Section 2.27 Commitment Agreement, identical to those of the Term Commitments and the Term Loans; provided that (i) the weighted average life to maturity of any Incremental Term Loans shall be construed no shorter than the remaining weighted average life to obligate any Lender maturity of the Terms Loans and (ii) no Incremental Term Loan shall mature prior to execute the Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Loan Activation NoticeCommitment Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) On the effective date of any Incremental Revolving Commitments (the “Incremental Revolving Commitment Increase Effective Date, in the event any Loans under the Facility are then outstanding”), (i) the aggregate principal amount of the Revolving Loans outstanding (the “Initial Loans”) immediately prior to giving effect to such Incremental Revolving Commitment Effective Date shall be deemed to be paid, (ii) each relevant Incremental Revolving Lender that shall make available have been a Revolving Lender prior to the Incremental Revolving Commitment Effective Date shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such amounts Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments), multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the Incremental Revolving Commitments), multiplied by (2) the amount of the Initial Loans, (iii) each Incremental Revolving Lender that shall not have been a Revolving Lender prior to the Incremental Revolving Commitment Effective Date shall pay to the Administrative Agent in immediately available same day funds as an amount equal to the product of (1) such Incremental Revolving Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Subsequent Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall determine are necessary pay to each Revolving Lender that is not an Incremental Revolving Lender the portion of such funds that is equal to the excess of (A) the product of (1) such Revolving Lender’s Applicable Percentage (calculated without giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Initial Loans, over (B) the product of (1) such Revolving Lender’s Applicable Percentage (calculated after giving effect to the Incremental Revolving Commitments) multiplied by (2) the amount of the Subsequent Borrowings, (v) after the effectiveness of the Incremental Revolving Commitments, the Company shall be deemed to have made new Borrowings (the “Subsequent Borrowings”) in order an aggregate principal amount equal to causethe aggregate principal amount of the Initial Loans and of the types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03, (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Subsequent Borrowing (calculated after giving effect to the Incremental Revolving Commitments) and (vii) the Company shall pay each Revolving Lender any and all accrued but unpaid interest on the Initial Loans. The deemed payments made pursuant to clause (i) above in respect of each LIBOR Loan and EURIBOR Loan shall be subject to indemnification by the Company pursuant to the provisions of Section 2.15 if the Incremental Revolving Commitment Effective Date occurs other than on the last day of the Interest Period relating thereto and breakage costs result. In the case of any Incremental Revolving Commitments that have become effective at a time when Loans denominated in both Euro and US Dollars shall be outstanding, the amounts payable by the Revolving Lenders pursuant to this paragraph shall be paid in Euro and US Dollars in proportion to the principal amounts of the Euro and US Dollar denominated Revolving Loans outstanding on the Incremental Revolving Commitment Effective Date.
(d) Incremental Commitments established pursuant to this Section shall become effective on the date specified in the notice delivered by the Company pursuant to the second sentence of paragraph (a) above.
(e) Notwithstanding the foregoing, no Incremental Commitments shall become effective under this Section unless, (i) on the date of effectiveness thereof, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied (without giving effect to the phrase “As of the date hereof,” in Section 3.06 or 3.07(b)) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by the chief financial officer of the Company and (ii) the Administrative Agent shall have received documents consistent with those delivered under clauses (b) and (c) of Section 4.01 as to the corporate power and authority of the Company to borrow hereunder after giving effect to such increased Incremental Commitment. Each Incremental Commitment Agreement may, without the consent of any Lender other than the applicable Incremental Lenders, effect, by amendment or amendment and restatement, such mechanical amendments (which shall not include amendments to or waivers under Articles V, VI or VII) to this Agreement and the other Loan Documents (including provisions hereof or thereof that would otherwise require the consent of all Lenders) as may be necessary or appropriate, in the opinion of the Administrative Agent, to provide for the applicable Incremental Commitments and the application loans and other extensions of such amounts credit thereunder and otherwise to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be held ratably by all Lenders with Commitments in the Facility in accordance with such Commitments after giving give effect to the provisions of this Section, including any amendment necessary to treat the applicable Incremental Term Commitments and Incremental Term Loans as a new “Class” of commitments and loans hereunder; provided that no such increaseIncremental Commitment Agreement shall effect any amendment or waiver referred to in Section 9.02(b)(2)(i), (ii) or (iii), or any other amendment or waiver that by the Company and terms of this Agreement requires the consent of each Lender affected thereby (except to the extent each required consent shall have been obtained).
(f) Upon the effectiveness of an Incremental Commitment of any relevant Subsidiary Borrower Incremental Lender, (i) such Incremental Lender shall be deemed to have prepaid be a “Lender” (and reborrowed a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all outstanding the rights of and benefits accruing to, and bound by all agreements, acknowledgements and other obligations of, a Lender (or a Lender in respect of Commitments and Loans of the applicable Class) hereunder and under this Agreement the other Loan Documents and (iiiii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Company Revolving Commitment of such Incremental Lender and any relevant Subsidiary Borrower (B) the aggregate Revolving Commitment shall pay be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”.
(g) Subject to the relevant terms and conditions set forth herein and in the applicable Incremental Commitment Agreement, each Lender holding an Incremental Term Commitment shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Commitment Agreement.
(h) The Administrative Agent shall notify the Lenders promptly upon receipt by the amountsAdministrative Agent of any notice from the Company referred to in Section 2.09(a) and of the effectiveness of any Incremental Commitments, if anyin each case advising the Lenders of the details thereof (including each amendment effected pursuant to an Incremental Commitment Agreement) and, payable under Section 2.22 as a result in the case of such prepaymenteffectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto.
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Samples: Credit Agreement (Waters Corp /De/)
