Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis. (b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05. (c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
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Incremental Commitments. (a) So long as Lead Borrower may, from time to time, by written notice to the Administrative Agent, request additional Revolving Commitments (collectively, “Incremental Commitment Request Requirements are satisfied Commitments”), from one or more Revolving Lenders (in the sole discretion of such Lenders) and/or Eligible Assignees who will become Revolving Lenders, in an aggregate principal amount of up to $100,000,000; provided that at the time of the delivery incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the request referred to belowproceeds thereof, the ABL Borrowers no Default shall have the rightoccurred and be continuing or would result therefrom; provided further that (1) each such Person, with the consent ofif not already a Revolving Lender hereunder, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, shall be subject to the applicable terms approval of the Administrative Agent, the L/C Issuers and conditions contained in this Agreement, the Swingline Lender (which approvals shall not be unreasonably withheld or delayed) and (2) Lead Borrower may make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that only five such requests. Such notice shall set forth (i) no Lender the amount of the Incremental Commitments being requested (which shall be obligated to provide an Incremental Commitment as in minimum increments of $10,000,000 and a result minimum amount of any such request by the ABL Borrowers$25,000,000), and until (ii) the date on which such time, if any, as such Lender has agreed in its sole discretion Incremental Commitments are requested to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause become effective (b) of this Section 1.15, such Lender which shall not be obligated less than five Business Days nor more than 60 calendar days after the date of such notice, unless otherwise agreed to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without by the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a LenderAdministrative Agent)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent The Borrowers and each such Revolving Lender or other Eligible Transferee which agrees to provide providing an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of Assumption Agreement and such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to other documentation as the Administrative Agent (or any affiliate thereof)), (x) all shall reasonably specify to evidence the Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in of such Incremental Commitment Agreement shall have been satisfiedRevolving Lender. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary (i) to reflect the existence and terms of the Incremental Commitments evidenced thereby and (ii) to increase the hard dollar amounts in the definitions of “Borrowing Base Reporting Trigger Event”, “Borrowing Base Reporting Trigger Period”, “Cash Dominion Trigger Event”, “Cash Dominion Trigger Period”, “Collateral Administration Trigger Event”, “Collateral Administration Trigger Period” and “Payment Conditions” and in Sections 2.2(h) and 7.12, in each case in proportion to the increase in the Revolving Commitments after giving effect to such Incremental Commitments. Any such deemed amendment may be memorialized in writing by the Administrative Agent with Lead Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(c) The terms of each Incremental Commitment shall be reasonably satisfactory to the Administrative Agent and in any event:
(i) each Incremental Commitment (and the Revolving Loans made thereunder) shall rank pari passu in right of payment and of security with the existing Revolving Commitments (and the Revolving Loans made thereunder); and
(ii) all material terms of each Incremental Commitment (and the Revolving Loans made thereunder) shall be identical to the existing Revolving Commitments (and the Revolving Loans made thereunder) (excluding upfront and other similar fees paid at the closing of such timeIncremental Commitment).
(d) No Incremental Commitments shall become effective unless, on the date of such effectiveness, (i) the Total Revolving Loan Commitment under, conditions set forth in paragraphs (a) and for all purposes of, this Agreement (b) of Section 4.2 shall be increased by the aggregate amount of such Incremental Commitments; provided that satisfied as if it was a borrowing date and the Administrative Agent shall have consented received a certificate to that effect dated such increase, date and executed by a Financial Officer of Lead Borrower; and (ii) Schedule I the Administrative Agent shall be deemed modified to reflect the revised Commitments have received closing certificates, opinions of the affected Lenders counsel and (iii) to the extent other customary documentation requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05Administrative Agent.
(ce) At Each of the time parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that, following the establishment of any provision of Incremental Commitments pursuant to this Section 1.15Commitments, the ABL Borrowers shall, outstanding Revolving Loans are held by the Revolving Lenders in coordination accordance with their new Applicable Percentages. This may be accomplished by the Administrative Agent, repay in consultation with Lead Borrower, by requiring each outstanding Revolving Loans of certain LIBOR Borrowing of the Lenders under relevant Class to be converted into an ABR Borrowing of such Class on the relevant Tranche or Tranches, and incur date of each additional Revolving Loans from certain other Lenders under the relevant Tranche Commitment, or Tranches (including the Incremental Lenders), (even though as requiring a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing prepayment and reborrowing of Revolving Loans under the relevant Tranche Loans. Any conversion or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender prepayment made pursuant to the preceding sentence shallshall be subject to Section 3.5 (it being understood that, absent manifest errorthe Administrative Agent shall consult with Lead Borrower regarding the foregoing and, be final and conclusive and binding on all parties heretoto the extent practicable, will attempt to pursue options that minimize breakage costs).
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Incremental Commitments. The Company may, upon five (a5) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred Business Days’ notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15Agent, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to increase the Revolving Loan Maturity Date, that Commitment amount by adding one or more Lenders (and/or one lenders or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting increasing the Revolving Loan Commitments andCommitment of a Lender, determined by the Company in its sole discretion, subject to the applicable terms consent of the Administrative Agent, Swingline Lender and conditions contained in this AgreementIssuing Banks (such consent not to be unreasonably withheld), make Revolving Loans which lender or lenders are willing to commit to such increase (each such lender, a “New Lender,” and participate in Letters of Credit pursuant theretosuch commitment, it being understood and agreedthe “Incremental Commitment”); provided, however, that (i) no Lender shall be obligated to provide an the Company may not elect any Incremental Commitment as a result after the occurrence and during the continuance of any such request by the ABL Borrowersan Event of Default, 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 an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent Event of Default that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a would result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase Incremental Commitment, (ii) each Incremental Commitment shall be in an amount not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (iii) after giving effect to all Incremental Commitments the Total aggregate Revolving Loan Commitment pursuant Commitments shall not exceed $3,750,000,000 and (iv) on the effective date of the Incremental Commitment, each New Lender will, to this Section 1.15) the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the relevant ABL Borrowers under Revolving Loan Commitments. An Incremental Commitment shall become effective upon the relevant Tranche being jointly execution by each applicable New Lender of a counterpart of this Agreement and severally obligated to pay delivering such counterpart to the respective Lenders any costs Administrative Agent. Over the term of the type referred to in Section 1.11 and such amounts, as reasonably determined by Agreement the respective Lenders, to compensate them for funding Company shall increase the various Revolving Loans during an existing Interest Period Loan Commitments no more than four (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.4)
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Incremental Commitments. (a) So long as The Borrower may, by written notice to the Administrative Agent from time to time, on one or more occasions, request Incremental Commitments in an additional aggregate principal amount not to exceed the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and Cap from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Incremental Lenders (and/or one which may include any existing Lender (each of which shall be entitled to agree or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject decline to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant theretoits sole discretion)) willing to provide such Incremental Commitments, it being understood and agreedas the case may be, howeverin their own discretion; provided, that (i) no each Incremental Lender shall be obligated subject to provide an Incremental Commitment as a result the approval of any such request by the ABL BorrowersAdministrative Agent (which approval shall not be unreasonably withheld, delayed or conditioned), the Swingline Lender (which approval shall not be unreasonably withheld, delayed or conditioned) and until such time, if any, as such Lender has agreed the Borrower (in its sole discretion to provide discretion) unless such Incremental Lender is an existing Lender, and (ii) each Incremental Commitment shall be on the same terms as the existing Commitments (except with respect to any underwriting, upfront or similar fees that may be agreed to among the Borrower and executed the Incremental Lenders providing such Incremental Commitments) and delivered 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 an may agree) or equal to the remaining Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15Amount), (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv2) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15Commitments, which shall not exceed the Maximum Incremental Commitment Amount Amount, and (v3) all Revolving Loans the date on which such Incremental Commitments are requested to become 4905-5289-3475 v.5 effective (and all interest, fees and other amounts payable thereonthe “Increased Amount Date”), made pursuant . The Borrower shall have no obligation to an offer any Lender the opportunity to participate in any Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basisCommitments.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent The Borrower and each such Incremental Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Assumption Agreement, with . Each of the parties hereto hereby agrees that upon the effectiveness of such any Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Assumption Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the aggregate amount of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s written consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Commitments; provided that Commitment shall become effective under this Section 2.22 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have consented received a certificate to that effect dated such increasedate and executed by an Authorized Officer of the Borrower, and (ii) Schedule I the Administrative Agent shall be deemed modified to reflect the revised Commitments of the affected Lenders have received legal opinions, board resolutions and (iii) other closing certificates and documentation to the extent requested reasonably required by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay and such additional documents and filings as the Administrative Agent may reasonably require to assure that the Loans in respect of Incremental Commitments are secured by the 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 ensure all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as on a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretobasis.
Appears in 1 contract
Incremental Commitments. (a) So long as At any time prior to the Incremental Commitment Request Requirements are satisfied at repayment in full of all Loans and the time termination of the delivery of the request referred to belowall Commitments hereunder, the ABL Borrowers shall have the rightBorrower may, with the consent of, and in coordination with, by written notice to the Administrative Agent as (which the Administrative Agent shall promptly furnish to all of the matters set forth below in this Section 1.15each Lender), but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders Persons (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as may include the then-existing Lenders; provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an such Incremental Commitment as a result of any such request by the ABL Borrowers, Commitments and until such time, if any, as such Lender has agreed 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 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 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 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 executed and delivered to the Administrative Agent an Agent. Each Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15Amendment may, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to (x) effect the provisions of this Section 2.17 or (y) to the extent the terms and conditions of the Incremental Commitments are more favorable to the Lenders than comparable terms existing in the Loan Documents, to bring the terms and conditions of the existing Loans in line with the terms and conditions of the Incremental Loans necessary to achieve fungibility. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in clauses (a) and (c) of Section 4.02 shall have been satisfied and (ii) the Administrative Agent shall have received documents from the Borrower substantially consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (iii2) each provision as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitments 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 given date pursuant Pro Forma Basis) to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including such borrowing and to any Eligible Transferee who will become a Lender)) concurrent transactions and any substantially concurrent use of at least $10,000,000 and in integral multiples of $1,000,000 in excess proceeds thereof, (iv3) the aggregate amount representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of all Incremental Commitments provided the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to this Section 1.15such Acquisition-Related Incremental Commitment, shall not exceed customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Maximum Incremental Commitment Amount Administrative Agent and (vthe Borrower) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the benefits incurrence of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basissuch Acquisition-Related Incremental Commitment.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent The Loan Parties and each such Incremental Term Loan Lender or other Eligible Transferee which agrees to provide an and/or Incremental Commitment (each, an “Incremental Lender”) Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with Amendment and such other documentation as the effectiveness Administrative Agent shall reasonably specify to evidence the Incremental Commitments of such Incremental Term Loan Lender and/or Incremental Revolving Lender’s . Each Incremental Commitment Amendment shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Credit Commitments; provided that:
(i) any commitments to occur on make Incremental Term Loans in the form of additional Initial Term B-1 Loans shall have the same terms as the Initial Term B-1 Loans, and shall form part of the same Class of Initial Term B-1 Loans, (x) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term B-1 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 set forth in of any such Other Incremental Commitment Agreement, which date in any event Term Loans shall be no earlier than the Maturity Date applicable to Initial Term B-1 Loans, and, except as to pricing, amortization and final maturity date on (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-1 Loans or otherwise permitted under this Section 2.17(b), that are (wx) all not more favorable, taken as a whole, to the Lenders providing such Incremental Term Loans than the terms of the Initial Term B-1 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-1 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 required 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 paid determined by the Borrower and the applicable Incremental Revolving Lenders or Incremental Term Loan Lenders; provided that in connection therewith the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower prior to the firstsix-month anniversary of the Amendment No. 1 Effective Date under any Incremental Term Loan Commitment is higher than the All-in Yield for the outstanding Initial Term B-1 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-1 Loans at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement Term Loans are incurred shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all the All-in Yield for the Initial Term B-1 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 under 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 relevant Tranche 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 Tranches participate 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 borrowing of Initial Term B-1 Loans on a pro rata basis, and (ii) all Revolving Loans under in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the relevant Tranche or Tranches applicable Class of outstanding Revolving Loans on a pro rata on basis. Notwithstanding anything to the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to contrary, this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay 2.17 shall supersede any provisions in Section 2.15 or Section 9.02 to the respective Lenders any costs of the type referred to in contrary. Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence2.18. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto[Reserved].
Appears in 1 contract
Sources: Credit Agreement (Integrated Device Technology Inc)
Incremental Commitments. (ai) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred The Borrower may by written notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as (whereupon the Administrative Agent shall promptly deliver a copy to all of the matters set forth below in this Section 1.15, but without requiring the consent of any each of the Lenders) request, to request at any time and from time to time after (a) the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that extension of one or more Lenders (and/or new Term Loan Commitments or one or more other Persons increases in the existing Term Loan Commitments (any such new or increased Term Loan Commitment, an “Incremental Term Commitment”) and (b) the extension of one or more new Revolving Credit Commitments or one or more increases in the existing Revolving Credit Commitments (any such new or increased Revolving Credit Commitment, an “Incremental Revolving Commitment”), in an aggregate amount (with respect to both Incremental Term Commitments and Incremental Revolving Commitments) not to exceed $50,000,000. Each Incremental Commitment shall be in an aggregate amount not less than $5,000,000 and integral multiples thereof (or such lesser amount and/or multiples as may be agreed by the Borrower and the Administrative Agent). Each notice delivered pursuant to this Section 3A.1 shall specify (I) the date (the “Increase Effective Date”) on which are Eligible Transferees and which will become Lenders as provided below) provide the Borrower proposes that the proposed Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as effective, which shall be a result of any date not less than 10 Business Days after the date in which such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and notice is delivered to the Administrative Agent an (unless otherwise consented to by the Administrative Agent in its discretion), (II) the total of the Incremental Commitment Agreement Commitments requested by the Borrower and (III) the identity of the banks, financial institutions and other entities to whom the Borrower proposes that any portion of such Incremental Commitments be allocated and the amounts of such allocations, which banks, financial institutions or other entities may or may not be existing Lenders, but who shall be Eligible Assignees. Any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in respect thereof as provided in clause (b) of this Section 1.15its sole discretion, to provide such Incremental Commitment. Any proposed new Lender shall not be obligated enter into a joinder or other agreement in form and substance reasonably satisfactory to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each its counsel (such Lender or other additional Eligible Transferee which agrees to provide Assignees becoming Lenders and any existing Lenders providing an Incremental Commitment (eachCommitment, an collectively, the “Incremental LenderLenders”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Sources: Credit Agreement (Vertex, Inc.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request The Borrower may at any time time, and from time to time after the Initial Borrowing Date and prior time, by notice to the Administrative Agent, request an increase in the Aggregate Commitments (provided that there shall be no increase in the Revolving Loan Maturity DateFacility Sublimit pursuant to this Section 2.24) provided for under this Agreement by an amount (in the aggregate for all such requests) not exceeding $500,000,000 (each such increase, an “Incremental Commitment Increase”); provided, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees i) the maximum Aggregate Commitment hereunder shall not at any given time be in excess of $2,200,000,000, (ii) the maximum Revolving Facility Sublimit shall not at any given time be in excess of $750,000,000, (iii) any such Incremental Commitment Increase shall be in a minimum amount of $25,000,000 and which any whole multiple of $10,000,000 in excess thereof and (iv) each Incremental Commitment Increase will become Lenders be treated as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in a Commitment under this Agreement; provided, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, howeverfurther, that (i) no Lender shall be obligated required to provide an all or any portion of such Incremental Commitment as a Increase and (ii) no Default or Event of Default shall have occurred and be continuing or would result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to after giving effect to such Incremental Commitment provided Increase on the Incremental Commitment Increase Effective Date. To achieve the full amount of a requested increase, the Borrower may also invite additional banks or other financial institutions to become Incremental Increase Lenders pursuant to this Section 1.15a joinder agreement in form and substance satisfactory to the Administrative Agent (each such joinder agreement, (ii) any an “Incremental Joinder Agreement”); provided that each Incremental Increase Lender shall be subject to the approval of the Administrative Agent and each Issuing Lender (including any Eligible Transferee who will become a Lendersuch approval in each case not to be unreasonably withheld or delayed) may so provide an Incremental Commitment without and the consent approval of the Borrower, but not the approval of any other Lender, (iii) each provision of Incremental . If the Aggregate Commitments on a given date pursuant to are increased in accordance with this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL BorrowerSection, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an the Borrower shall determine the effective date (the “Incremental Commitment (each, an “Incremental LenderIncrease Effective Date”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness final allocation of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfiedincrease. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Incremental Commitment Increase Effective Date. On each Incremental Commitment Increase Effective Date, each Lender, immediately prior to all Incremental Commitment Increases occurring on such Incremental Commitment Increase Effective Date, will automatically and without further action be deemed to have assigned to each Incremental Increase Lender providing a portion of the Incremental Commitment Increase on such Incremental Commitment Increase Effective Date, and each such Incremental Increase Lender will automatically and without further action be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, each Lender as (including each Incremental Increase Lender) shall hold its Applicable Percentage (including any additional Commitments of the Incremental Increase Lenders) of the participations hereunder in Letters of Credit. Notwithstanding anything to the effectiveness contrary set forth herein, the terms of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement Increase shall be increased identical to the Commitments made as of the Closing Date except that the Applicable Rate in respect of the Letter of Credit Fee and/or the Commitment Fee and any other pricing terms (including upfront fees) shall be determined by the aggregate amount of such Borrower and the applicable Incremental Commitments; provided that the Administrative Agent shall have consented Increase Lenders. As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate signed by a senior vice president, the chief financial officer or the treasurer of the Borrower (i) certifying that such Incremental Commitment Increase and the performance of the Borrower’s obligations thereunder (in form and substance reasonably satisfactory to the Administrative Agent) have been duly authorized (and attaching any evidence thereof reasonably requested by the Administrative Agent), and (ii) Schedule I certifying that, as of the Incremental Commitment Increase Effective Date, before and after giving effect to such Incremental Commitment Increase, (A) the representations and warranties contained in Article IV and the other Loan Documents are true (except that for such purposes, the representations and warranties contained in Section 4.04(a) shall be deemed modified to reflect refer to the revised Commitments most recent statements furnished pursuant to Section 5.01(a)), (B) no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the affected Lenders Borrower or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of the Borrower to perform its obligations under the Loan Documents and (iiiC) no Default shall have occurred and be continuing. Solely with respect to any Incremental Commitment Increase, this Section shall supersede any provisions in Sections 2.14(c), 2.14(d), 8.04 or 8.05 to the extent requested by contrary. In connection with any Incremental LenderCommitment Increase, Notes will be issuedthe Administrative Agent and the Borrower may, at without the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time consent of any provision of Incremental Commitments pursuant Lenders, effect such amendments to this Section 1.15, the ABL Borrowers shallany Loan Documents as may be necessary or appropriate, in coordination with the opinion of the Administrative Agent, repay outstanding Revolving Loans to effect the provisions of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto2.24.
Appears in 1 contract
Sources: Revolving Loan and Letter of Credit Facility Agreement (Fluor Corp)
Incremental Commitments. (a) So long as The Borrower may, by 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 Commitment Request Requirements are satisfied Amount at such time. Such notice shall set forth the time amount of the delivery 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 request referred proposed increased amount. Each Lender shall, by notice to below, the ABL Borrowers shall have the right, with the consent of, Borrower and in coordination with, the Administrative Agent as to all given not more than 10 days after the date of the matters set forth below in this Section 1.15Administrative Agent’s notice, but without requiring the consent of any either agree to increase its Commitment by all or a portion of the Lendersoffered 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, to request at any time and from time to time on the 10th day after the Initial Borrowing Date and prior Administrative Agent shall have delivered such notice, the Lenders shall have agreed pursuant to the Revolving Loan Maturity Datepreceding sentence to increase their Commitments by an aggregate amount less than the increase in the Total Commitment requested by the Borrower, that the Borrower may arrange for one or more Lenders banks or other entities (and/or one any such bank or more other Persons entity being called an “Augmenting Lender”), which are Eligible Transferees and which will become Lenders as provided below) provide Incremental may include any Lender, to extend Commitments constituting Revolving Loan or increase their existing Commitments and, subject in an aggregate amount equal to the applicable terms and conditions contained in this Agreementunsubscribed amount; provided that, make Revolving Loans and participate in Letters of Credit pursuant theretonotwithstanding the foregoing, it being understood and agreed, however, that (i) no person shall become a Lender and no Lender’s Commitment shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided increase pursuant to this Section 1.15, 2.22 without the prior written consent of the Administrative Agent and the Issuing Bank (which shall not be unreasonably withheld) and (ii) the L/C Commitment of any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment Issuing Bank shall not be increased pursuant to the Section 2.22 without the prior written consent of any other Lendersuch 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, (iii) each provision of Incremental Commitments on a given date pursuant or chooses not to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereofarrange for, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basisAugmenting Lenders.
(b) At the time Each of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which parties hereto hereby agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented may take any and all actions as may be reasonably necessary to such increaseensure that, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.152.22, 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 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 this paragraph (b) shall be subject to Section 2.15, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Commitment shall become effective under this Section 2.22 unless, (i) on the date of such increase, the conditions set forth in paragraphs (b) and with (c) of Section 4.01 shall be satisfied and the relevant ABL Borrowers under the relevant Tranche being jointly Administrative Agent shall have received a certificate to that effect dated such date and severally obligated to pay to the respective Lenders any costs executed by a Financial Officer of the type referred to in Section 1.11 Borrower, and such amounts, as reasonably determined by (ii) the respective Lenders, to compensate them Administrative Agent shall have received (with sufficient copies for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning each of the respective Interest Period, based upon rates then applicable theretoLenders) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to customary closing documentation as the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoAdministrative Agent shall have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Laboratory Corp of America Holdings)
Incremental Commitments. Upon the satisfaction of the following conditions (a) So long as such date of satisfaction, the “Incremental Facility Effective Date”), the total Revolving Facility Commitments shall be increased by an amount equal to the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that Amount:
(i) no Lender Default or Event of Default shall have occurred and be obligated continuing or shall result after giving effect to provide an the Incremental Commitment as a result of any such request by Facility;
(ii) the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered 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 Commitment Agreement in respect thereof as provided in clause Facility Exercise Fee”) equal to the product of (bi) of this Section 1.15, such Lender shall not be obligated to fund any the total Incremental Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, Facility Commitments multiplied by (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, 0.125% per annum;
(iii) the termination of the AB Receivables Financing and the payment in full or provision for payment in full of all obligations owing to the purchasers under the AB Receivables Financing, in each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be case in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, manner reasonably acceptable to the Administrative Agent;
(iv) the aggregate amount Administrative Agent shall maintain a senior perfected security interest in substantially all of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and AB Receivables owned by Wise; and
(v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and shall have received a written notice signed by a Responsible Officer of each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (eachBorrower, an “Incremental Lender”) shall execute and deliver to notifying the Administrative Agent an of the Borrowers’ election to exercise the Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing Facility and certifying as to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions matters set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such 2.15. On the Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such timeFacility Effective Date, (i) each relevant Incremental Revolving Facility Lender shall make available to the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of Administrative Agent such Incremental Commitments; provided that amounts in immediately available funds as the Administrative Agent shall have consented determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increaseincrease and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Facility Loans of all the Lenders to equal its Pro Rata Share of such outstanding Revolving Facility Loans, and (ii) Schedule I the Borrowers shall be deemed modified to reflect the revised Commitments have repaid and reborrowed all outstanding Revolving Facility Loans as of the affected Lenders and Incremental Facility Effective Date (iii) with such reborrowing to consist of the extent requested Types of Revolving Facility Loans, with related Interest Periods if applicable, specified in a notice delivered by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity accordance with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments 2.03). The deemed payments made pursuant to this Section 1.15, clause (ii) of the ABL Borrowers shallimmediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in coordination with the Administrative Agentrespect of each Eurodollar Rate Loan, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (shall be subject to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined indemnification by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender Borrower pursuant to the preceding sentence shallprovisions of Section 3.05 if the deemed payment occurs other than on the last day of the related Interest Periods. Notwithstanding any provision herein or in any other Loan Document to the contrary, absent manifest errorno Revolving Facility Loans, 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 final secured by any Real Property unless and conclusive until the flood diligence required by Sections 6.02 and binding on all parties hereto10.01 has been completed in a manner satisfactory to each Lender, as confirmed by written notice from each such Lender to the Administrative Agent and the Borrowers after the Incremental Facility Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Constellium N.V.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred The Borrowers may, by written notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after time, but in no event more than twice (provided that the Initial Borrowing Date and prior Administrative Agent may, in its sole discretion, waive such restriction), request Incremental Commitments in an amount not to exceed the Revolving Loan Maturity Date, that Incremental Amount from one or more Incremental Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders may include any existing Lender) willing to provide such Incremental Commitments, as provided below) provide Incremental Commitments constituting Revolving Loan Commitments andthe case may be, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, howevertheir own discretion; provided, that (i) no each Incremental Lender shall be obligated subject to provide an the approval of the 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 on the same terms as the existing Commitments and in all respects shall become a result part of any the Commitments hereunder on such request by terms; provided, that, with the ABL consent of the Borrowers, and until such time, if any, as such Lender has agreed the Applicable Rate applicable to the then existing Commitments shall automatically be increased (but in its sole discretion no event decreased) to provide an 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 executed and delivered to a minimum amount of $10,000,000 (or such lesser amount as the Administrative Agent an may agree) or equal to the remaining Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15Amount), (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv2) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15Commitments, which shall not exceed the Maximum Incremental Commitment Amount Amount, and (v3) all Revolving Loans the date on which such Incremental Commitments are requested to become effective (and all interest, fees and other amounts payable thereonthe “Increased Amount Date”), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent The Borrowers and each such Incremental Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Assumption Agreement, with . Each of the parties hereto hereby agrees that upon the effectiveness of such any Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Assumption Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the aggregate amount of the Incremental Commitments evidenced thereby. 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 Commitments; provided that Commitment shall become effective under this Section 2.22 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied and the Administrative Agent shall have consented received a certificate to that effect dated such increasedate and executed by an Authorized Officer of each of the Borrowers, and (ii) Schedule I the Administrative Agent shall be deemed modified to reflect the revised Commitments of the affected Lenders have received legal opinions, board resolutions and (iii) other closing certificates and documentation to the extent requested reasonably required by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay in each case consistent with those delivered on the Effective Date under Section 4.01 and such additional documents and filings as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Revolving Loans.
(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 Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as on a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretobasis.
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred The Borrower may, by notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of (who shall promptly notify the Lenders), to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that establishment of one or more Lenders new term loan commitments (and/or one each, an “Incremental Commitment”) pursuant to an Incremental Facility for an aggregate amount (for all such requests) not exceeding the difference between $2,000,000,000 and the aggregate amount of the Loans funded on the Effective Date; provided, that the aggregate amount of each such Incremental Commitment request shall be in a minimum amount of $25,000,000, or more the remaining unused amount of the aggregate increase permitted by this Section 2.17, if less, and integral multiples of $10,000,000 in excess thereof.
(b) An Incremental Commitment may be provided by any existing Lender or other Persons which are Eligible Transferees and which will become Lenders as Person that is an Assignee meeting the requirements of Section 9.06(c) (each such existing Lender or other Person that agrees to provide an Incremental Commitment, an “Incremental Lender”); provided below) provide that each Incremental Commitments constituting Revolving Loan Commitments and, Lender shall be subject to the applicable terms and conditions contained consent (in this Agreementeach case, make Revolving Loans and participate in Letters not to be unreasonably withheld or delayed) of Credit pursuant theretothe Administrative Agent. Notwithstanding anything herein to the contrary, it being understood and agreed, however, that (i) no Lender shall be obligated have any obligation to agree to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, and any election to do so shall be in the sole discretion of such Lender.
(iic) any Lender (including any Eligible Transferee who will become a Lender) may so provide an The Administrative Agent and the Borrower shall determine the effective date for each Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date Facility pursuant to this Section 1.15 (an “Incremental Commitment Effective Date”) and, if applicable, the final allocation of such Incremental Commitments among the Persons providing such Incremental Facility; provided that such date shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of Domestic Business Day at least $10,000,000 and in integral multiples three Domestic Business Days after delivery of $1,000,000 in excess thereof, (iv) the aggregate amount of all request for such Incremental Commitments provided (unless otherwise approved by the Administrative Agent) and at least 30 days prior to the Maturity Date.
(d) In order to effect any Incremental Facility, the Borrower, the applicable Incremental Lender(s) and the Administrative Agent (but no other Lenders or Persons) shall enter into one or more Joinder Agreements, each in form and substance satisfactory to the Borrower and the Administrative Agent, pursuant to this Section 1.15, shall not exceed which the Maximum applicable Incremental Lender(s) will provide the Incremental Commitment(s).
(e) Effective as of the applicable Incremental Commitment Amount Effective Date, subject to the terms and (v) all Revolving Loans (and all interestconditions set forth in this Section, fees and other amounts payable thereon), made pursuant to an each Incremental Commitment shall be entitled a Commitment and Schedule 1.01 shall be updated accordingly to reflect such Incremental Commitment, each Incremental Lender providing such Incremental Commitment shall be, and have all the benefits rights of, a Lender, and the Loans made by it on such Incremental Commitment Effective Date shall be Loans, for all purposes of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basisthis Agreement.
(bf) At Notwithstanding the time of foregoing, the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such shall not be effective with respect to any Incremental Lender or other Eligible Transferee which agrees to provide an Incremental Commitment unless:
(each, an “Incremental Lender”i) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other The conditions set forth in this Section 1.15 shall 3.03 have been satisfied, and (z) all other conditions precedent that may be set forth in such satisfied as of the applicable Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, Effective Date;
(iii) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increasereceived one or more Joinder Agreements contemplated above, (ii) Schedule I shall be deemed modified to reflect providing for Incremental Commitments in the revised Commitments amount of the affected Lenders and applicable Incremental Facility; and
(iii) to the extent Administrative Agent shall have received such legal opinions and other documents reasonably requested by any Incremental Lender, Notes will be issued, at the expense Administrative Agent in connection therewith. As of each applicable ABL BorrowerIncremental Commitment Effective Date, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with upon the Administrative Agent, repay outstanding Revolving Loans of certain ’s receipt of the documents required by this paragraph (f), the Administrative Agent shall record the information contained in the applicable Joinder Agreement(s) in the Register and give prompt notice of the Incremental Commitments to the Borrower and the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the each Incremental LendersLender), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to belowThe Borrower Representative may, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent on behalf of any of the LendersBorrower, to request at any time and or from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Closing Date, that by notice to Administrative Agent (an “Incremental Loan Request”), request (A) one or more Lenders new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental increases in the amount of the Revolving Commitments constituting (a “Revolving Loan Commitments Commitment Increase” and, subject collectively with any Incremental Term Commitments, the “Incremental Commitments”), in an aggregate principal amount 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 applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result incurrence of any such request by Incremental Loans (assuming the ABL Borrowersfull 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 until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered buybacks (limited to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (bactual amount of cash paid) of this Section 1.15, such Lender shall not be obligated to fund any Revolving the Initial Term Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such and the Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 Term Loans and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits voluntary prepayments of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than accompanied by permanent commitment reductions thereto), payments utilizing the then outstanding Borrowings yank-a-bank provisions of the respective such Loans)Credit Documents, in each case prior to such time other than any such voluntary prepayments (and commitment reductions), and buybacks to the extent necessary so that all 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 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 relevant Tranche or Tranches participate Fixed Incremental Amount and/or Prepayment Amount concurrently with the incurrence of any amounts in each outstanding borrowing reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Revolving Loans Incremental Credit Facilities incurred other than under the relevant Tranche or Tranches pro rata on Incremental Incurrence-Based Amount may be re-designated at any time, as the basis of their respective Commitments Borrower Representative may elect from time to time, as incurred under the relevant Tranche or Tranches (after giving effect to any increase in Incremental Incurrence-Based Amount if the Total Revolving Loan Commitment pursuant to this Section 1.15) and with Borrowers meet the relevant ABL Borrowers applicable ratio under the relevant Tranche being jointly and severally obligated to pay Incremental Incurrence-Based Amount at such time on a pro forma basis, at any time subsequent to the respective Lenders any costs incurrence of such Incremental Credit Facility by written notice to the type referred to in Section 1.11 and Administrative Agent on such amountsdate. (for purposes of clarity, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount and/or incurrence. All determinations the Prepayment Amount, as applicable, as of the date of such redesignation by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoamount of such Indebtedness so redesignated).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time Pursuant to and in accordance with Section 2.14 of the delivery Credit Agreement, effective as of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time Fourth Amendment Effective Date (immediately after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to 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 Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments ’s name in Annex A hereto and on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled identical terms to the benefits of the guarantees and security provided existing Revolving Credit Commitments under the Existing Credit Documents to Agreement on the other ABL Obligations on a pari passu basisdate hereof.
(b) At The Incremental Commitments shall be subject to the time provisions of the provision Existing Credit Agreement and the other Loan Documents, 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 Incremental Commitments pursuant to this Section 1.15the Loan Documents, (i) each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment shall constitute a “Revolving Credit Commitment” and (ii) each Incremental Lender shall be a “Lender” and a “Revolving Credit Lender” and shall have all the rights and obligations of an Existing Revolving Lender (as defined below) holding a Revolving Credit Commitment.
(c) On the Fourth Amendment Effective Date (immediately after giving effect to the amendments to the Credit Agreement effected by Section I hereof), (i) each of the existing Revolving Credit Lenders immediately prior to the Fourth Amendment Effective Date (each, an “Incremental Existing Revolving Lender”) shall execute automatically and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall further act be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) have assigned to the extent requested by any each Incremental Lender, Notes will be issued, at the expense of and each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements shall automatically and without further act be deemed to have purchased and assumed, a portion of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding such Existing Revolving Loans of certain of the Lenders Lender’s participations under the relevant Tranche or TranchesExisting Credit Agreement in outstanding Letters of Credit, Swing Line Loans and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders)Agent Advances, (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase each such deemed assignment and assumption and participation, the aggregate outstanding participations under the Credit Agreement in 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 Total Revolving Loan Commitment pursuant Credit Loans outstanding on the Fourth Amendment Effective Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans will be held by the Lenders (including each Incremental Lender) ratably in accordance with their respective Revolving Credit Commitments after giving effect to this Section 1.15Amendment. The assignments and assumptions contemplated by clause (ii) and of the preceding sentence shall be made through the Agent in accordance with the relevant ABL Borrowers under Agent’s instructions to each Lender and each Lender hereby authorizes the relevant Tranche being jointly and severally obligated Agent to pay take any actions as may be necessary or advisable to give effect to the respective Lenders any costs reallocation of Revolving Credit Loans contemplated thereby.
(d) As of the type referred Fourth Amendment Effective Date, after giving effect to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning incurrence of the respective Interest PeriodIncremental Commitments hereunder, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender the aggregate principal amount of Revolving Credit Commitments outstanding pursuant to the preceding sentence shall, absent manifest error, Credit Agreement shall be final and conclusive and binding on all parties hereto$225,000,000.
Appears in 1 contract
Incremental Commitments. (ai) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred The Borrowers may by written notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as (whereupon the Administrative Agent shall promptly deliver a copy to all of the matters set forth below in this Section 1.15, but without requiring the consent of any each of the Lenders) request, to request at any time and from time to time after (a) the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that extension of one or more Lenders (and/or new term loan commitments or one or more other Persons increases in any existing term loan commitments (any such new or increased term loan commitment, an “Incremental Term Commitment”) and (b) the extension of one or more new Revolving Credit Commitments or one or more increases in the existing Revolving Credit Commitments (any such new or increased Revolving Credit Commitment, an “Incremental Revolving Credit Commitment”), in an aggregate amount (with respect to both Incremental Term Commitments and Incremental Revolving Credit Commitments) not to exceed $100,000,000. Each Incremental Commitment shall be in an aggregate amount not less than 66 $5,000,000 and integral multiples thereof (or such lesser amount and/or multiples as may be agreed by the Borrowing Agent and the Administrative Agent). Each notice delivered pursuant to this Section 3.1 shall specify (I) the date (the “Increase Effective Date”) on which are Eligible Transferees and which will become Lenders as provided below) provide the Borrowers propose that the proposed Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as effective, which shall be a result of any date not less than 10 Business Days after the date in which such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and notice is delivered to the Administrative Agent an (unless otherwise consented to by the Administrative Agent in its discretion), (II) the total of the Incremental Commitment Agreement Commitments requested by the Borrowers and (III) the identity of the banks, financial institutions and other entities to whom the Borrowers propose that any portion of such Incremental Commitments be allocated and the amounts of such allocations, which banks, financial institutions or other entities may or may not be existing Lenders but who shall be Eligible Assignees. Any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in respect thereof as provided in clause (b) of this Section 1.15its sole discretion, to provide such Incremental Commitment. Any proposed new Lender shall not be obligated enter into a joinder or other agreement in form and substance reasonably satisfactory to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each its counsel (such Lender or other additional Eligible Transferee which agrees to provide Assignees becoming Lenders and any existing Lenders providing an Incremental Commitment (eachCommitment, an collectively, the “Incremental LenderLenders”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Commitments. (a) So long as Each Incremental Lender that is an Increasing Lender hereby agrees that, on the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Increase Effective Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall its Revolver Commitment will be obligated to provide an increased by the amount of its Incremental Commitment set forth on Annex B attached hereto effective as a result of any such request by the ABL BorrowersIncrease Effective Date (as defined below), 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 an Incremental Commitment Agreement in respect thereof as provided in clause (bii) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to after giving effect to such Incremental increase, its total Revolver Commitment provided pursuant to this Section 1.15will be the amount of its “Total Revolver Commitment” set forth on Annex B attached hereto, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, and (iii) each provision of Incremental Commitments on it shall continue to be a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided Lender under the Amended Credit Documents to the other ABL Obligations on a pari passu basisAgreement.
(b) At Subject to the time occurrence of the provision of Increase Effective Date and to the terms and conditions set forth herein, (i) each Incremental Commitments Lender that is an Additional Lender hereby agrees that it shall become a party to the Credit Agreement as a Lender, pursuant to this Amendment, and shall constitute a Lender, and (ii) each of the parties hereto agree that such Lender shall have the rights and obligations of a Lender under the Credit Agreement and under the other applicable Loan Documents; provided, that each of the parties hereto agree that any such Additional Lender will have the benefit of Section 1.159.3 of the Credit Agreement as a Lender, mutatis mutandis, from and after the date hereof whether or not the Increase Effective Date occurs.
(c) On the Increase Effective Date, (i) each ABL Borrowerof the existing Lenders shall assign to each of the Incremental Lenders, the Administrative Agent and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such Lender or other Eligible Transferee which agrees interests in the outstanding Revolving Loans and participations in Letters of Credit outstanding on such date that will result in, after giving effect to provide an all such assignments and purchases, such Revolving Loans and participations in Letters of Credit being held by existing Lenders and Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver Lenders ratably in accordance with their Pro Rata Share after giving effect to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness addition of such Incremental Lender’s Commitments to the Revolver Commitments and (ii) each Incremental Commitment shall be deemed, for all purposes, a Revolver Commitment and each loan made thereunder shall be deemed, for all purposes, a Revolving Loan and have the same terms as any existing Revolving Loan.
(d) Each Incremental Lender (i) confirms that it has received a copy of the Amended Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to occur therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment, (ii) agrees that it will, independently and without reliance upon Agent or any other Lender or agent thereunder and based on such documents and information as it shall deem appropriate at the date set forth time, continue to make its own credit decisions in such Incremental Commitment taking or not taking action under the Amended Credit Agreement, (iii) appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Loan Documents as are delegated to Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (iv) agrees that it will perform in accordance with their terms all of the obligations which date in any event shall be no earlier than by the date on which (w) all fees terms of the Amended Credit Agreement are required to be paid performed by it as a Lender (which, in connection therewith the case of each Additional Lender, will be subject to the occurrence of the Increase Effective Date), (v) confirms that it is an Eligible Transferee, and (vi) to the extent it is an Additional Lender, (A) agrees, subject to the occurrence of the Increase Effective Date, that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender and (B) certifies that it has delivered to the Par Borrower the forms prescribed by the Internal Revenue Service of the United States certifying as to its status for purposes of determining exemption from United States withholding taxes with respect to all payments to be made to it under the Amended Credit Agreement or such other documents as are necessary to indicate that all such payments are subject to such rates at the time of such effectiveness shall have been paid a rate reduced by an applicable tax treaty.
(e) Each Lender party hereto (including, without limitationfor the avoidance of doubt, each undersigned Lender that is not an Incremental Lender) hereby agrees that the Borrower shall not be required to make any agreed upon up-front or arrangement fees owing Funding Losses payments to such Lender which may otherwise be required under Section 2.12(b)(ii) of the Administrative Agent (or any affiliate thereof))Credit Agreement solely resulting from the increase in the Revolver Commitments effected pursuant to this Amendment; provided, (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions that each Lender’s waiver of such Funding Losses payments set forth in this Section 1.15 shall have been satisfied1.1(e) is a limited, one-time waiver, and (z) all other conditions precedent that may be set forth nothing contained herein shall obligate Agent or any Lender to grant any additional or future waiver with respect to, or in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreementconnection with, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche Amended Credit Agreement or Tranches, and incur additional Revolving Loans from certain any other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoDocument.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.152.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Final Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees Assignees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments under a Tranche and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.152.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment under any Tranche as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.152.15, (ii) any Lender (including any Eligible Transferee Assignee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 2.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee Assignee who will become a Lender)) of at least $10,000,000 5,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.152.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations under the relevant Tranche on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.152.15, each ABL BorrowerBorrower under the relevant Tranche, the Administrative Agent and each such Lender or other Eligible Transferee Assignee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 2.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment (and the Total U.S./European Commitment and/or Total Canadian Commitment, as applicable) under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) if the Total U.S./European Commitment is then being increased and the relevant Incremental Commitment Agreement so provides, the Total European Sub-Commitment shall be increased by the amount specified in such Incremental Commitment Agreement (not to exceed the amount of the related Incremental Commitment); provided that the Administrative Agent shall have consented to such increase, (iiiii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iiiiv) to the extent requested by any Incremental Lender, Revolving Loan Notes will be issued, at the expense of each applicable ABL BorrowerBorrowers, to such Incremental Lender in conformity with the requirements of Section 1.052.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.152.15, the ABL Borrowers under the relevant Tranche or Tranches shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment (and the Total U.S./European Commitment and/or Total Canadian Commitment, as applicable) pursuant to this Section 1.152.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 2.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that The Company may on one or more Lenders occasions, by written notice to the Administrative Agent, request the establishment, during the Availability Period, of Incremental Commitments; provided, that the aggregate amount of all the Incremental Commitments established hereunder shall not exceed $500,000,000 during the term of this Agreement. Each such notice shall specify (and/or 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, and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be approved by the Administrative Agent, each Issuing Lender and each Swingline Lender (such approval not to be unreasonably withheld or delayed)).
(b) The terms and conditions (including the applicable facility fee and interest rate spreads) of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and Loans and other extensions of credit made hereunder, and shall be treated as a single Class with such Commitments and Loans; provided, that the Company at its election may pay upfront or closing fees with respect to Incremental Commitments without paying such fees with respect to the other Commitments.
(c) The Incremental Commitments shall be effected pursuant to one or more other Persons which are Eligible Transferees Incremental Facility Agreements executed and which will become Lenders as provided below) provide delivered by the Company, each Incremental Lender providing such Incremental Commitments constituting Revolving Loan and the Administrative Agent; provided, that no Incremental Commitments andshall become effective unless (i) on the date of effectiveness thereof, subject both immediately prior to and immediately after giving effect to such Incremental Commitments, no Default shall have occurred and be continuing, (ii) on the date of effectiveness thereof and after giving effect to the applicable terms and conditions contained in this Agreement, make Revolving making of Loans and participate in issuance of Letters of Credit pursuant theretothereunder to be made on such date, it being understood the representations and agreed, however, warranties of each Loan Party set forth in the Loan Documents that (i) no Lender are qualified by materiality shall be obligated true and correct and the representations and warranties that are not so qualified shall be true and correct in all material respects on and as of such date, except to provide the extent such representations and warranties expressly relate to an Incremental Commitment as a result of any earlier date (in which case such request representations and warranties that are qualified by the ABL Borrowersmateriality shall be true and correct and such representations and warranties that are not so qualified shall be true and correct in all material respects, and until such time, if anyin each case, as of such Lender has agreed earlier date), (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in its sole discretion to provide an connection with such Incremental Commitment Commitments and executed and the related transactions under this Section, (iv) the Company shall have delivered to the Administrative Agent an such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction and (v) each Subsidiary Guarantor (if any) shall have reaffirmed its Guarantee of the Obligations. Each Incremental Commitment Facility Agreement in respect thereof as provided in clause (b) of this Section 1.15may, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment 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 Administrative Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender not already a Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and (ii) (A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Total Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Credit Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each provision Incremental Lender that shall not have had a Commitment prior to the effectiveness of such Incremental Commitments on a given date pursuant shall pay to this Section 1.15 shall be Administrative Agent in a minimum aggregate same day funds an amount equal to the product of (for all Lenders 1) such Lender’s Applicable Percentage (including any Eligible Transferee who will become a Lender)calculated after giving effect to the effectiveness of such Incremental Commitments) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, multiplied by (iv2) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15the Resulting Revolving Borrowings, shall not exceed (iv) after the Maximum Incremental Commitment Amount Administrative Agent receives the funds specified in clauses (ii) and (viii) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrowerabove, the Administrative Agent and shall pay to each Lender the portion of such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver funds that is equal to the Administrative Agent an Incremental Commitment Agreementdifference, with if positive, between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and (B) the product of (1) such Lender’s Incremental Commitment Applicable Percentage (calculated after giving effect to occur on the date set forth in effectiveness of such Incremental Commitment AgreementCommitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, which date in any event (v) after the effectiveness of such Incremental Commitments, the Borrowers shall be no earlier than deemed to have made new Revolving Borrowings (the date on which (w“Resulting Revolving Borrowings”) all fees required in an aggregate amount for each Borrower equal to be paid the aggregate amount of its Existing Revolving Borrowings and of the Types and for the Interest Periods specified in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (and the Company or any affiliate thereof)such Borrower shall deliver such Borrowing Request), (xvi) all each Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Commitment Requirements are satisfied, (yCommitments) all other conditions set forth in this Section 1.15 shall have been satisfied, and (zvii) each Borrower shall pay each Lender any and all other conditions precedent that may accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be set forth in subject to compensation by the Borrowers pursuant to the provisions of Section 2.16 if the date of the effectiveness of such Incremental Commitment Agreement shall have been satisfied. Commitments occurs other than on the last day of the Interest Period relating thereto.
(f) The Administrative Agent shall notify the Lenders promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased upon receipt by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, notice from the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type Company referred to in Section 1.11 2.05(a) and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Periodeffectiveness of any Incremental Commitments, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender each case, advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the payments required to be made pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoSection 2.05(e).
Appears in 1 contract
Sources: Credit Agreement (Tyson Foods Inc)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers The Borrower shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Restatement Effective Date by written notice to and prior in consultation with the Administrative Agent, to request (i) an increase in the aggregate Commitments (each such requested increase, a “Revolving Loan Maturity DateCommitment Increase”), that and/or (ii) one or more Lenders term loan commitments (and/or each such requested term loan commitment, a “Term Loan Commitment” and, together with any Revolving Commitment Increase, the “Incremental Commitments”) to make one or more other Persons which are Eligible Transferees and which will become term loans (each a “Term Loan”) by having one or more existing Lenders as provided below) provide Incremental increase their respective Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as then in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become and/or provide a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitment (each, an “Incremental 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; provided that (A) any such request for an Incremental Commitment shall execute be in a minimum amount of $25,000,000, (B) immediately after giving effect to any Incremental Commitment, (y) the aggregate Commitments plus Incremental Commitments shall not exceed $350,000,000 and deliver (z) the aggregate of all Incremental Commitments effected shall not exceed $100,000,000, (C) 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 (E) the 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 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 Agreement, with the effectiveness of such to an Incremental Lender, the Administrative Agent or ▇▇▇▇▇ Fargo, as Arranger, shall be for their own account and shall be in an 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 occur on an Incremental Lender, the date Administrative 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 AgreementEffective Date), which date in any event provided that the Term Loans made pursuant to such Term Loan Commitments (i) shall be no not mature earlier than the date Maturity Date, and (ii) will constitute Obligations of the Borrower on which a pari passu basis with any Revolving Loans
(wc) 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 fees required such other documentation as the Administrative Agent and the Borrower may reasonably require including without limitation the documentation for the amendment referred to be paid in connection therewith at the time of such effectiveness shall have been paid (includingSection 2.20(e)(i)(A), without limitation, any agreed upon up-front or arrangement fees owing 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).
(or any affiliate thereof))d) If Incremental Commitments are provided in accordance with this Section 2.20, the Borrower (xin consultation with the Administrative Agent) all and each Incremental Lender shall agree upon the effective date (the “Incremental Commitment Requirements are satisfied, Effective Date,” which shall be a Business Day not less than thirty (y30) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfieddays prior to the Termination Date). The Administrative Agent shall promptly notify each the Lenders of such increase and the Incremental Commitment Effective Date. For clarity, no Lender as other than an Incremental Lender must execute any joinder or amendment in connection with an Incremental Commitment.
(e) Notwithstanding anything set forth in this Section 2.20 to the effectiveness of each contrary, the Borrower shall not incur any Revolving Loans or Term Loans pursuant to any Incremental Commitment Agreement(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 the Term Loan Commitments, if any, and at the reallocation of Commitments and the allocation of Term Loan Commitments, as applicable, referred to in Section 2.20(f), together with all other documentation required by the Administrative Agent pursuant to Section 2.20(c);
(B) 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 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 timeparty approving or consenting to such Incremental 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 this Agreement and the 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 date), (y) immediately after giving effect to such Incremental Commitment (including any Borrowings in connection therewith and the 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 Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) an opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have reasonably requested.
(f) For Revolving Commitment Increases, on the Incremental Commitment Effective Date, (i) the Total aggregate principal outstanding amount of the Revolving Loan Loans (the “Initial Loans”) immediately prior to giving effect to the Incremental Commitment undershall be deemed to be repaid, (ii) immediately after the effectiveness of the Incremental Commitment, the Borrower shall be deemed to have 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 of the Types and for all purposes ofthe Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.2(b), this Agreement (iii) each Lender shall be increased by pay to the aggregate Administrative Agent in immediately available funds an amount equal to the difference, if positive, 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 Commitments; provided that Commitment) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall have consented pay to each Lender the portion of such increasefunds equal to the difference, if positive, between (iiy) Schedule I shall be deemed modified such Lender’s pro rata percentage (calculated without giving effect to reflect the revised Commitments Incremental Commitment) of the affected Lenders Initial Loans and (iiiz) to the extent requested by any Incremental such Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches ’s pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches percentage (calculated after giving effect to any increase 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 Total Revolving Loan Commitment 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 this Section 1.15clause (i) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated above in respect of each LIBOR Loan shall be subject to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined indemnification by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender Borrower pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding provisions of Section 2.18 if the Incremental Commitment Effective Date occurs other than on all parties heretothe last day of the Interest Period relating thereto.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Incremental Commitments. (a) So long as The Borrower may by written notice (which may be included in the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided belowAdditional Credit Extension Amendment itself) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause elect to seek (bw) commitments (“Additional Revolving Commitments”) to increase the Revolving Facility Commitments of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15Class, (iix) any Lender commitments (including any Eligible Transferee who will become a Lender“Additional Term Loan Commitments”) may so provide an Incremental Commitment without to increase the consent aggregate principal amount of any other Lenderexisting Class of Term Loans, (iiiy) each provision commitments (“Other Term A Loan Commitments”) to establish a Class of Incremental Commitments on Other Term A Loans or (z) commitments (“Term B Loan Commitments”) to establish a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount new Class of Term B Loans; provided that:
(for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (ivi) the aggregate principal amount of all Incremental Commitments provided pursuant to this Section 1.15after 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 Maximum Incremental Commitment 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;
(vii) 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 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, 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 all interestthe Borrower, fees except to the extent such provisions apply only after the Term A Facility Maturity Date or such other provisions apply equally for the benefit of the Term A Lenders (including with respect to pricing) and, to the extent applicable (other than pricing and other amounts payable thereonamortization), made pursuant the Revolving Facility Lenders;
(F) except as to an 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 Commitment Term Lenders in their sole discretion), (a) the covenants and events of default applicable to Term B Loans shall not be entitled materially more favorable (when taken as a whole) to the benefits 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 guarantees other Lenders holding Term A Loans) as determined in the reasonable determination of the Administrative Agent and security provided under the Credit Documents 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 ABL Obligations on a outstanding Facilities and (c) the operational and agency provisions applicable to such Term B Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower; and
(1) the security interest and guaranties benefiting the Incremental Term Loans will rank pari passu basisin 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) At The availability of any Incremental Commitments or Incremental Term Loans under this Agreement will be subject solely to the time following conditions, subject, for the avoidance of doubt, to Section 1.09, measured (at the election of Parent or Borrower) on the date of the provision initial borrowing under (or receipt of Incremental Commitments pursuant commitments with respect to) such Facility:
(i) no Default or Event of Default shall have occurred and be continuing; provided that the condition set forth in this clause (i) may be waived or not required (other than with respect to this Section 1.15Specified Events of Default) by the Persons providing such Facilities if the proceeds of the initial Borrowings thereunder will be used to finance, each ABL Borrowerin whole or in part, the Administrative Agent and each such Lender a Permitted Business Acquisition or other Eligible Transferee Investment permitted hereunder; and
(ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects as of such date, as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which agrees 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 provide an Incremental Commitment customary “SunGard” style conditionality by the Persons providing such Facilities if the proceeds of the initial Borrowings thereunder will be used to finance, in whole or in part, a Permitted Business Acquisition or other Investment permitted hereunder.
(c) Each such notice shall specify (x) the date (each, an “Incremental LenderCommitments Effective Date”) on which the Borrower proposes that the Incremental Commitments shall execute be effective, which shall be a Business Day and deliver (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 Administrative Agent an extent as would be required if the Lender of the Incremental Commitment Agreement, with were an assignee) whom the effectiveness Borrower proposes would provide the Incremental Commitments and the portion of such Incremental Lender’s the Incremental Commitment to occur on the date set forth in be provided by each such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05Person.
(cd) At Upon the time incurrence of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Additional Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.152.22, the Borrower shall prepay any Revolving Facility Loans outstanding on the Incremental Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.17) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective 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, the Revolving Facility Lenders any costs after giving effect to such Additional Revolving Commitments shall make such Revolving Facility Loans in accordance with Section 2.01(c).
(e) The Incremental Commitments shall be 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 this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the type referred Administrative Agent and the Borrower, to effect the provisions of this Section 2.22.
(f) This Section 2.22 shall supersede any provisions in Section 1.11 2.19 or Section 9.08 to the contrary. The Administrative Agent and such amountsthe Lenders hereby further agree that the minimum borrowing, as reasonably determined by pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender transactions effected pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoSection 2.22.
Appears in 1 contract
Sources: Credit Agreement (EVERTEC, Inc.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, The Borrower and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided belowincluding New Lenders) provide Incremental Commitments constituting Revolving Loan Commitments and, subject may from time to time prior to the Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable terms Increased Facility Closing Date; provided that immediately prior to and conditions contained after giving effect to any such increase in this Agreement, make the Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that Commitments (i) no Lender Default or Event of Default shall have occurred and be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, continuing 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 an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) each of the representations and warranties made by any Lender Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date (including except that any Eligible Transferee who will become a Lenderrepresentations and warranties which expressly relate to an earlier date shall be true and correct in all material respects as of such earlier date). Notwithstanding the foregoing, (i) may so provide an Incremental Commitment without the consent of any other Lenderthe Required Lenders, (iii) each provision the aggregate amount of Incremental incremental Revolving Commitments on a given date obtained after the ClosingSecond Amendment Effective Date pursuant to this Section 1.15 paragraph shall not exceed $240,000,000the 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 aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrower after the Closing Date. No Lender shall have any obligation to participate in integral multiples 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 $1,000,000 in excess thereof, the Borrower and the Administrative Agent (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, which consent shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereonbe unreasonably withheld), made pursuant elects to an Incremental Commitment 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 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 the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basisthis Agreement.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred The Borrowers may, by written notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as on four occasions during the period from the Closing Date to all of 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 matters set forth below in this Section 1.15aggregate, but without requiring the consent of together with any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior increase to the Revolving Committed Amount (under and as defined in the Revolving Credit Agreement) and incremental term loans under the Term Loan Maturity Date, 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 (and/or one which may include any existing Lender, each, a “New Term Loan Lender”) willing to provide such 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 more other Persons an Affiliate of a Lender. Such notice shall set forth (i) the amount of the incremental Commitments being requested, and (ii) the date on which such incremental Commitments are Eligible Transferees and requested to become effective (the “Increased Amount Date”). On any Increased Amount Date on which will become Lenders as provided below) provide Incremental any such incremental Commitments constituting Revolving Loan Commitments andare effective, subject to the applicable satisfaction of the foregoing terms and conditions contained in this Agreementconditions, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no each New Term Loan Lender shall be obligated make a Loan to provide the Borrowers (a “New Term Loan”) in an Incremental Commitment as a result of any such request by the ABL Borrowersamount equal to its 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 an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any each New Term Loan Lender (including any Eligible Transferee who will shall become a Lender) may so provide an Incremental Lender hereunder with respect to such incremental Commitment without and the consent New Term Loans made pursuant thereto. The terms and provisions of any other Lender, (iii) each provision of Incremental the New Term Loans and the incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled identical to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basisexisting Loans.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent The Borrowers and each such New Term Loan Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental such documentation as the Administrative Agent shall reasonably specify to evidence the incremental Commitment Agreementof such New Term Loan Lender. Each of the parties hereto hereby agrees that, with upon the effectiveness of any such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreementdocumentation, which date in any event this Credit Agreement shall be no earlier 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 date on which (w) all fees required to Borrowers upon any such incremental Commitments shall be paid in connection therewith agreed upon by the Administrative Agent, the New Term Loan Lenders and the Borrowers at the time of such effectiveness increase. Notwithstanding the foregoing, nothing in this Section 2.7 shall have been paid constitute or be deemed to constitute an agreement by any Lender to increase its Commitment hereunder.
(includingc) Notwithstanding the foregoing, without limitationno incremental Commitment shall become effective under this Section 2.7 unless (i) on the date of such effectiveness, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement 5.2 shall be increased by the aggregate amount of such Incremental Commitments; provided that satisfied assuming a Loan were then being made and the Administrative Agent shall have consented received a certificate to that effect dated such increasedate and executed by a financial officer of BRT, (ii) Schedule I the Administrative Agent shall be deemed modified 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 reflect the revised Commitments of extent required by the affected Lenders 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) to the extent requested by any Incremental Lender, Notes will Borrowers shall be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity pro forma compliance with the requirements of covenants set forth in Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (7.2 after giving effect to any increase in such incremental Commitments, the Total Revolving Loan Commitment pursuant Loans to this Section 1.15) be made thereunder and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs application of the type referred to in Section 1.11 proceeds therefrom as if made and applied on such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period date.
(rather than at the beginning d) Each of the respective Interest Periodparties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all New Term Loans, based upon rates then applicable thereto) when originally made, are included in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding each borrowing of outstanding Loans on all parties heretoa pro rata basis.
Appears in 1 contract
Sources: Term Loan B Agreement (Brandywine Operating Partnership, L.P.)
Incremental Commitments. (a) So long The Borrower may, from time to time, by written notice to the Administrative Agent, request additional Commitments, as applicable (collectively, “Incremental Commitments”), from one or more Lenders (in the sole discretion of such Lenders) or Eligible Assignees who will become Lenders, in an aggregate principal amount for all Incremental Commitment Request Requirements are satisfied Commitments not to exceed $50,000,00025,000,000; provided that at the time of the delivery incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the request referred to belowproceeds thereof (assuming the full utilization thereof), the ABL Borrowers no Default shall have occurred and be continuing or would result therefrom and the rightBorrower shall be in Pro Forma Compliance with Section 7.12(a); provided, with further, that each such person, if not already a Lender hereunder, shall be subject to the consent of, and in coordination with, approval of the Administrative Agent as to all of and, in connection with any additional Commitment, the matters L/C Issuer and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed). Such notice shall set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender the amount of the additional Commitments being requested (which shall be obligated in minimum increments of $1,000,000 and a minimum amount of $5,000,000) and (ii) the date on which such additional Commitments are requested to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause become effective (b) of this Section 1.15, such Lender which shall not be obligated less than ten Business Days nor more than 60 calendar days after the date of such notice, unless otherwise agreed to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without by the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a LenderAdministrative Agent)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent The Borrower and each such additional Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of Assumption Agreement and such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to other documentation as the Administrative Agent (or any affiliate thereof)), (x) all shall reasonably specify to evidence the Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in of such Incremental Commitment Agreement shall have been satisfiedLender. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and at terms of the Incremental Commitments evidenced thereby. Any such timedeemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(c) The Incremental Commitments shall rank pari passu in right of payment and of security with the existing Loan Document Obligations and all terms of any additional Commitments and Credit Extensions under such additional Commitments shall be identical to the existing Commitments and Credit Extensions.
(d) No additional Commitments shall become effective under this Section 2.11 unless, on the date of such effectiveness, (i) the Total Revolving Loan Commitment under, conditions set forth in paragraphs (a) and for all purposes of, this Agreement (b) of Section 4.2 shall be increased by the aggregate amount of such Incremental Commitments; provided that satisfied as if it was a borrowing date and the Administrative Agent shall have consented received a certificate to that effect dated such increase, date and executed by a Financial Officer of the Borrower; and (ii) Schedule I the Administrative Agent shall be deemed modified to reflect the revised Commitments have received (with sufficient copies for each of the affected Lenders additional Lenders) closing certificates, opinions of counsel and (iii) to the extent other customary documentation requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05Administrative Agent.
(ce) At Each of the time parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that following the establishment of any provision of Incremental Commitments pursuant to this Section 1.15additional Commitments, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain are held by the Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Lenders under Administrative Agent by requiring each outstanding LIBOR Borrowing of the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required Class to be maintained as Euro Rate Loans) may have converted into an ABR Borrowing of such Class on the date of each additional Commitment, or by requiring a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing prepayment and reborrowing of Revolving Loans under the relevant Tranche Loans. Any conversion or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender prepayment made pursuant to the preceding sentence shallshall be subject to Section 3.5 (it being understood that, absent manifest errorthe Administrative Agent shall consult with the Borrower regarding the foregoing and, be final and conclusive and binding on all parties heretoto the extent practicable, will attempt to pursue options that minimize breakage costs).
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Incremental Commitments. (a) So long as The Borrowers may, from time to time, request additional Revolving Commitments (collectively, “Incremental Commitments”) from the Lenders (in the sole discretion of such Lenders) or, if such Lenders have declined to issue the full amount of the requested Incremental Commitment Request Requirements are satisfied Commitments pursuant to the provisions set forth in this clause (a), one or more Eligible Assignees who will become Lenders, in an aggregate principal amount of up to $30,000,000 provided that at the time of the delivery incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the request referred proceeds thereof, no Default shall have occurred and be continuing or would result therefrom; provided, further, that (1) each such person, if not already a Lender hereunder, shall be subject to belowthe approval of the Administrative Agent, the ABL Borrowers L/C Issuers and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed) and (2) during the term of this Agreement, Incremental Commitments shall only be provided on two (2) occasions. To request Incremental Commitments, the Lead Borrower shall first submit a notice to the Administrative Agent (to be promptly distributed by the Administrative Agent to the Lenders) setting forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $2,500,000 and a minimum amount of $10,000,000), and (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than ten (10) Business Days nor more than sixty (60) calendar days after the date of such notice, unless otherwise agreed to by the Administrative Agent). Each Lender shall have ten (10) Business Days to notify the rightAdministrative Agent of up to what amount (if any) of Incremental Commitments it would be willing to provide (including any amounts it would be willing to provide above the portion of the Incremental Commitments that is proportional to its Applicable Percentage of the Revolving Commitments) (provided, with that any Lender may elect to provide such Incremental Commitments through one or more Affiliates and Approved Funds of such Lender, subject to, if such Affiliates or Approved Funds are not already Lenders hereunder, the consent ofapproval of the Administrative Agent, the L/C Issuers and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed)) (provided, further, that a failure by a Lender to provide such a notice to the Administrative Agent within such ten (10) Business Day period shall be deemed to mean that such Lender does not agree to provide Incremental Commitments). Promptly (and in coordination withany event within one (1) Business Day) after such ten (10) Business Day period (or earlier, in the Administrative Agent’s discretion, if responses from all Lenders have been received by the Administrative Agent), the Administrative Agent as to all shall notify the Lead Borrower of the matters set forth below in this Section 1.15, but without requiring the consent aggregate amount of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to that the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated Lenders have agreed to provide an (capped at the maximum amount of Incremental Commitment as a result of any such request Commitments requested by the ABL BorrowersLead Borrower). If there is any shortfall between the amount of Incremental Commitments requested by the Lead Borrower and the aggregate amount of Incremental Commitments the Lenders agreed to provide, and until such time, if any, as such Lender has agreed in its sole discretion to provide an the Lead Borrower may (x) reduce the amount of Incremental Commitment and executed and delivered Commitments requested by it by notice to the Administrative Agent an (subject to the minimum amount and minimum increments set forth above) and/or (y) after allocating additional Incremental Commitment Agreement in Commitments to those Lenders who have offered to provide such additional amounts pursuant to the preceding sentence, seek out one or more Eligible Assignees (or one or more existing Lenders) to provide the shortfall amount of such Incremental Commitments and notify the Administrative Agent thereof (provided, that the approval of the Administrative Agent, the L/C Issuers and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed) shall be required with respect thereof to such Eligible Assignees that are not existing Lenders) (provided, further, that the Lead Borrower may, by notice to the Administrative Agent, extend the proposed effective date for such Incremental Commitments as provided in clause (b) may be reasonably appropriate to accommodate the Lead Borrower’s search for, and the Administrative Agent’s, L/C Issuers’ and Swingline Lender’s approval of, providers of this Section 1.15the Incremental Commitments). To the extent that more than one Lender has agreed to provide Incremental Commitments and the aggregate Incremental Commitments such Lenders have agreed to provide exceeds the amount of Incremental Commitments requested by the Lead Borrower, each such Lender shall provide Incremental Commitments in proportion to its Applicable Percentage relative to the Applicable Percentages of all such Lenders that have agreed to provide Incremental Commitments; provided, that if any Lender has not be obligated agreed to fund any Revolving Loans provide Incremental Commitments in an amount at least equal to such pro rata share (“underproviding lender”), the other Lenders agreeing to provide Incremental Commitments in an amount in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, their respective Applicable Percentages (ii“overproviding lenders”) any Lender (including any Eligible Transferee who will become a Lender) may so shall provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant that would otherwise be provided by the underproviding lender in proportion to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) their respective Applicable Percentages relative to the aggregate amount Applicable Percentages of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basisoverproviding lenders.
(b) At The Administrative Agent, the time of the provision of Borrowers and each Lender or other Person providing an Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, Commitment shall enter into an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitments, in each case on terms and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, conditions consistent with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied2.12. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended, without requiring the consent of any Person other than the Administrative Agent, the Borrowers and at each Lender or other Person providing an Incremental Commitment pursuant to such timeIncremental Assumption Agreement, to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Lead Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(c) The terms of each Incremental Commitment shall be reasonably satisfactory to the Administrative Agent and in all events:
(i) any Revolving Loans under any Incremental Commitments shall rank pari passu in right of payment and of security with the existing Revolving Loans; and
(ii) all material terms of any Incremental Commitments and Revolving Loans under such Incremental Commitments shall be identical to the existing Revolving Commitments and Revolving Loans.
(d) No Incremental Commitments shall become effective under this Section 2.12 unless, on the date of such effectiveness, (i) the Total Revolving Loan Commitment under, conditions set forth in paragraphs (a) and for all purposes of, this Agreement (b) of Section 3.02 shall be increased by the aggregate amount of such Incremental Commitments; provided that satisfied as if it was a borrowing date and the Administrative Agent shall have consented received a certificate to that effect dated such increase, date and executed by an Authorized Officer of the Lead Borrower; and (ii) Schedule I the Administrative Agent shall be deemed modified to reflect the revised Commitments have received closing certificates, opinions of the affected Lenders counsel and (iii) to the extent other customary documentation reasonably requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05Administrative Agent.
(ce) At Each of the time parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that, following the establishment of any provision of Incremental Commitments pursuant to this Section 1.15Commitments, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain are held by the Revolving Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Lenders under the relevant Tranche or Tranches, and incur additional Administrative Agent by requiring each outstanding LIBOR Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required Borrowing to be maintained as Euro Rate Loans) may have converted into an ABR Borrowing on the date of each Incremental Commitment, or requiring a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing prepayment and reborrowing of Revolving Loans under the relevant Tranche Loans. Any conversion or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender prepayment made pursuant to the preceding sentence shallshall be subject to Section 2.17 (it being understood that, absent manifest errorthe Administrative Agent shall consult with the Lead Borrower regarding the foregoing and, be final and conclusive and binding on all parties heretoto the extent practicable, will attempt to pursue options that minimize breakage costs).
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers Borrower shall have the right, with the consent ofof the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) and in coordination with, with the Administrative Agent as to all of the matters set forth below in this Section 1.152.23, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Closing Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees Assignees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement and in the respective Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swing Line Loans pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL BorrowersBorrower, 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 an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.152.23, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment or participate in any Letters of Credit or Swing Line Loans in excess of its Pro Rata Share, in each case as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.152.23, (ii) any Lender (including any Eligible Transferee Assignee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 2.23 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee Assignee who will become a Lenderlender)) of at least $10,000,000 5,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, 2.23 shall not exceed the Maximum Incremental Commitment Amount and Amount, (v) if the Applicable Commitment Fee Percentage and/or Applicable Margins with respect to Commitments to be provided or Revolving Loans to be incurred pursuant to an Incremental Commitment shall be higher in any respect than those applicable to any other Commitments or Revolving Loans, the Applicable Commitment Fee Percentage and/or Applicable Margins, as the case may be, for the other Commitments and Revolving Loans and extensions of credit hereunder shall be automatically increased as and to the extent needed to eliminate any deficiencies in accordance with the definition of “Applicable Commitment Fee Percentage” or “Applicable Margin” contained herein (such increase, the “Additional Commitment Fee” or “Additional Margin”, as the case may be), (vi) all Revolving Loans thereunder (and all interest, fees and other amounts payable thereon)) shall be Obligations under this Agreement, made and guaranteed under the Guaranty, on a pari passu basis with all other Obligations secured by the Pledge and Security Agreement and guaranteed under the Guaranty, and (vii) each Lender (including any Eligible Assignee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall be entitled reasonably satisfactory to the benefits Administrative Agent, each Issuing Bank and the Swing Line Lender and shall, subject to the satisfaction of the guarantees relevant conditions set forth in this Agreement, participate in Swing Line Loans and security Letters of Credit pursuant to Sections 2.2(b)(v) and 2.3(e), respectively, and make Revolving Loans as provided in Section 2.1(a), in each case, under the Credit Documents to Total Commitment, and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the other ABL Obligations on a pari passu basisapplicable Credit Document.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.152.23, (I) the Borrower, each ABL BorrowerGuarantor Subsidiary, the Administrative Agent and each such Lender or other Eligible Transferee Assignee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, including any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)) agreed upon by the Borrower in writing), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 2.23 shall have been satisfied, and (z) all other mutually agreed upon conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfiedsatisfied and (II) the Borrower, each Guarantor Subsidiary, the Collateral Agent and each Incremental Lender (as applicable) shall execute and deliver to the Administrative Agent and the Collateral Agent such additional Collateral Documents and/or amendments to the Collateral Documents as the Administrative Agent may reasonably request which are necessary to ensure that all Revolving Loans incurred pursuant to the Incremental Commitments and any Additional Commitment Fee and/or Additional Margin are secured by each relevant Collateral Document. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I each Incremental Lender shall constitute a Lender for all purposes of this Agreement and each other applicable Credit Document, (iii) Appendix A shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iiiiv) to the extent requested by any Incremental Lender, Revolving Loan Notes will be issued, at the expense of each applicable ABL the Borrower, to such Incremental Lender in conformity with the requirements of Section 1.052.6.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.152.23, (I) the ABL Borrowers Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or TranchesLenders, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.152.23) and with the relevant ABL Borrowers under the relevant Tranche Borrower being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto2.17(c) in connection with any such repayment and/or incurrenceincurrence and (II) there shall be an automatic adjustment to the participations hereunder in Letters of Credit and Swing Line Loans held by each Lender so that each such Lender shares ratably in such participations in accordance with their Commitments (after giving effect to the establishment of any Incremental Commitment). All determinations by any Lender 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 shall, absent manifest error, be final and conclusive and binding on all parties heretosentence.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (REV Group, Inc.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and The Borrower may from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Closing Date, that one or more Lenders upon at least sixty (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below60) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered days’ prior written notice to the Administrative Agent in each case, at any time prior to the Termination Date, increase the aggregate Commitments (each such increase, an “Incremental Commitment Agreement Increase”) at the option of the Borrower by an agreement in respect thereof as writing entered into by the Borrower, the other Credit Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Increase (each an “Incremental Amendment”); provided in clause that.
(a) the aggregate principal amount of all Incremental Increases shall not exceed $100,000,000;
(b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such each Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 Increase shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 20,000,000 and in integral multiples of $1,000,000 5,000,000 in excess thereofthereof (or such lesser amounts as the Administrative Agent may agree);
(c) no existing Lender shall be under any obligation to provide any portion of any Incremental Increase and any such decision whether to provide any portion of any Incremental Increase shall be in such Lender’s sole and absolute discretion;
(d) no Default or Event of Default shall have occurred and be continuing, and no Default or Event of Default would exist after giving effect to any Incremental Increase (and treating any Incremental Increase as fully drawn for such purpose), both on the date on which such Incremental Increase is requested and on the date on which such Incremental Increase becomes effective;
(e) each Person providing any Incremental Increase shall be a Lender or an institution that qualifies as an Eligible Assignee and is acceptable to the Administrative Agent and the L/C Issuer, and the Administrative Agent shall have received (A) additional commitments in respect of such requested Incremental Increase (each an “Incremental Commitment”) from such Persons and (B) documentation from each Person providing an Incremental Increase evidencing its Incremental Commitment and its obligations under this Agreement in form and substance acceptable to the Administrative Agent;
(f) the Administrative Agent shall have received:
(i) a certificate of each Credit Party dated as of the effective date of such Incremental Increase, signed by a Responsible Officer of such Credit Party acceptable to the Administrative Agent and (A) certifying and attaching such Credit Party’s articles of incorporation or certificate of formation (or equivalent), bylaws or operating agreement (or equivalent), and resolutions adopted by the board of directors or equivalent governing body of such Credit Party approving such Incremental Facility, and certifying as to the incumbency of the Responsible Officers of such Credit Party authorized to act on its behalf in connection with such Incremental Increase, and (B) in the case of the Borrower, certifying that, both immediately before and after giving effect to such Incremental Increase, (x) the representations and warranties contained in Article IV and in the other Credit Documents are true and correct on and as of the date of such Incremental Increase, with the same effect as if made on and as of such date (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct as of such date), and (y) no Default or Event of Default exists;
(ii) a certificate executed by a Financial Officer of the Borrower or the Parent certifying and demonstrating that after giving effect to the incurrence of such Incremental Increase (and treating such Incremental Increase as fully drawn for such purpose) the Borrower is in compliance with the financial covenants contained in Article VI, calculated on a Pro Forma Basis for the Reference Period most recently ended for which financial statements have been delivered under this Agreement in accordance with GAAP;
(iii) such amendments to the Security Documents as the Administrative Agent reasonably requests to cause the Security Documents to secure the Obligations after giving effect to such Incremental Increase;
(iv) to the aggregate amount extent requested by the Administrative Agent, customary opinions of all legal counsel (including local counsel in each relevant jurisdiction) to the Credit Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Commitments provided pursuant to this Section 1.15Commitment), shall not exceed dated as of the Maximum effective date of such Incremental Commitment Amount and Increase; and
(v) such other documents and certificates it may reasonably request relating to the necessary authority for such Incremental Increase and the validity of such Incremental Increase, and any other matters relevant thereto, all Revolving Loans in form and substance reasonably satisfactory to the Administrative Agent;
(g) the terms and all interestconditions (including interest rate, interest rate margins, fees (other than arrangement, structuring, underwriting and other amounts payable thereonsimilar fees not paid generally to all Lenders under such Incremental Increase), made pursuant to an prepayment terms and final maturity) of such Incremental Commitment Commitments shall be entitled the same as the terms applicable to the benefits of the guarantees Commitments hereunder, and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.such Incremental Commitments shall constitute Commitments hereunder;
(bh) At Schedule 1.1(a) shall be deemed revised to include any increase in the time of the provision of Incremental Commitments pursuant to this Section 1.152.22 and to include thereon any Person that becomes a Lender with a Commitment pursuant to this Section 2.22; and
(i) on the effective date of such Incremental Increase, the existing Lenders with Commitments shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Loans and participation interests in Letters of Credit to the Lenders providing such Incremental Commitments, and the Administrative Agent may make such adjustments to the Register as are necessary, so that after giving effect to such Incremental Increase and such assignments and adjustments, each ABL BorrowerLender (including the Lenders providing such Incremental Commitments) will hold its pro rata share (based on its Applicable Percentage of the increased aggregate Commitments) of outstanding Loans and participation interests in Letters of Credit. The Incremental Commitments and credit extensions thereunder shall constitute Commitments and credit extensions under, and shall be entitled to all the benefits afforded by, this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the security interests created by the Security Documents and from the Guaranty. The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Agreement and the other Credit Documents shall be amended by, such Incremental Amendments to the extent the Administrative Agent and each such Lender or other Eligible Transferee which agrees the Borrower deem necessary in order to provide an establish Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver Commitments on terms consistent with and/or to effect the Administrative Agent an Incremental Commitment Agreement, with the effectiveness provisions of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied2.22. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (iAmendment. This Section 2.22 shall supersede any provisions in Section 2.13(b) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) or 10.5 to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05contrary.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Sources: Credit Agreement (Greenbacker Renewable Energy Co LLC)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to belowThe Borrower Representative may, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent on behalf of any of the LendersBorrower, to request at any time and or from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Closing Date, that by notice to Administrative Agent (an “Incremental Loan Request”), request (A) one or more Lenders new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental increases in the amount of the Revolving Commitments constituting (a “Revolving Loan Commitments Commitment Increase” and, subject collectively with DOC ID - 36220401.1 any Incremental Term Commitments, the “Incremental Commitments”), in an aggregate principal amount 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 applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result incurrence of any such request by Incremental Loans (assuming the ABL Borrowersfull 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 until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered buybacks (limited to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (bactual amount of cash paid) of this Section 1.15, such Lender shall not be obligated to fund any Revolving the Initial Term Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such and the Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 Term Loans and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits voluntary prepayments of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than accompanied by permanent commitment reductions thereto), payments utilizing the then outstanding Borrowings yank-a-bank provisions of the respective such Loans)Credit Documents, in each case prior to such time other than any such voluntary prepayments (and commitment reductions), and buybacks to the extent necessary so that all 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 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 relevant Tranche or Tranches participate Fixed Incremental Amount and/or Prepayment Amount concurrently with the incurrence of any amounts in each outstanding borrowing reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Revolving Loans Incremental Credit Facilities incurred other than under the relevant Tranche or Tranches pro rata on Incremental Incurrence-Based Amount may be re-designated at any time, as the basis of their respective Commitments Borrower Representative may elect from time to time, as incurred under the relevant Tranche or Tranches (after giving effect to any increase in Incremental Incurrence-Based Amount if the Total Revolving Loan Commitment pursuant to this Section 1.15) and with Borrowers meet the relevant ABL Borrowers applicable ratio under the relevant Tranche being jointly and severally obligated to pay Incremental Incurrence-Based Amount at such time on a pro forma basis, at any time subsequent to the respective Lenders any costs incurrence of such Incremental Credit Facility by written notice to the type referred to in Section 1.11 and Administrative Agent on such amountsdate. (for purposes of clarity, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount and/or incurrence. All determinations the Prepayment Amount, as applicable, as of the date of such redesignation by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoamount of such Indebtedness so redesignated).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) So long as Borrowers may from time to time, upon written notice to the Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Commitments by an aggregate amount not to exceed Ten Million Dollars ($10,000,000) (the “Incremental Commitment Request Requirements Revolver”), such that the Aggregate Revolving Loan Commitments after giving effect to such increase are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers no greater than Thirty Million Dollars ($30,000,000). Each Lender shall have the rightright for a period of fifteen (15) days following receipt of such notice, to elect by written notice to the Borrower Representative and the Agent, to commit to establish all or a portion of such Incremental Revolver. Final allocations of the Incremental Revolver shall be determined by the Agent after consultation with the consent ofBorrower Representative. No Lender (or any successor thereto) shall have any obligation to establish all or any portion of such Incremental Revolver or to increase any other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to establish all or any portion of such Incremental Revolver shall be made in coordination withits sole discretion independently from any other Lender.
(b) If the Lenders do not commit to establish the entire Incremental Revolver pursuant to subsection (a) of this Section 1.13, the Administrative Agent as to all Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the matters existing Lenders), provided, however that if such Person is not an existing Lender, such Person must be acceptable to the Agent and join this Agreement as a Lender (an “Additional Lender”).
(c) In the event that the Borrower desires to increase the Commitments by the Incremental Revolver, the Borrower will enter into an amendment with the Agent, those Lenders providing the Incremental Revolver and Additional Lenders, if any (which shall upon execution thereof become Lenders hereunder if not theretofore Lenders) to provide for such Incremental Revolver, which amendment shall set forth below any terms and conditions of the Incremental Revolver not covered by this Agreement as agreed by the Borrower, Agent and such Lenders, and shall provide for the issuance of promissory notes to evidence the Incremental Revolver if requested by such Lenders (which notes shall constitute Notes for purposes of this Agreement), such amendment to be in form and substance reasonably acceptable to Agent and consistent with the terms of this Section 1.15, but without requiring 1.13(c) and of the other provisions of this Agreement. No consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior Lender not committing to the Revolving Loan Maturity Date, that one Incremental Revolver is required to permit the Incremental Revolver contemplated by and otherwise complying with this Section 1.13(c) or more Lenders the aforesaid amendment to effectuate the Incremental Revolver. This clause (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided belowc) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions shall supersede any provisions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing Section 9.1.
(d) The increase of the Commitments by the Incremental Revolver will be subject to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other satisfaction of the following conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, precedent: (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented after giving pro forma effect to such increase, no Default or Event of Default shall have occurred and be continuing and Borrowers will be in pro forma compliance with the covenants set forth in Sections 6.2 and 6.3, (ii) Schedule I shall be deemed modified to reflect the revised Commitments execution of the affected amendment hereto referenced in clause (c) above by Agent, the Lenders and Additional Lenders providing the Incremental Revolver and the Credit Parties, (iii) delivery to Agent of a certificate of the Secretary or an Assistant Secretary of each Credit Party, in form and substance satisfactory to Agent, certifying the resolutions of such Person’s board of directors (or equivalent governing body) approving and authorizing the Incremental Revolver (if not previously delivered to Agent), and certifying that none of the organizational documents of such Credit Party delivered to the extent requested by Agent prior thereto have been modified or altered in any Incremental Lenderway (or if modifications have occurred, Notes will be issued, at the expense certifying new copies of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lendersorganizational documents), (even though iv) delivery to Agent of an opinion of counsel to the Credit Parties in form and substance and from counsel reasonably satisfactory to the Agent, addressed to Agent and Lenders extending the Incremental Revolver and covering such matters as a result thereof the Agent may reasonably request, and (v) receipt by Agent of such new Loans (to the extent required to be maintained Notes and reaffirmations of guaranties, as Euro Rate Loans) Agent may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans)reasonably request, in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect together with amendments to any increase in Mortgages reflecting that the Total Revolving Loan Commitment pursuant to this Section 1.15) and Incremental Revolver is secured pari passu with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 Revolving Loan, and such amounts, endorsements to title policies or additional title searches as the Agent may reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretorequest.
Appears in 1 contract
Sources: Credit Agreement (Cryolife Inc)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request The Borrower may at any time and or from time to time after the Initial Borrowing Date and prior Effective Date, by notice to the Revolving Loan Maturity DateAdministrative Agent, that request one or more Lenders increases in the amount of the Commitments (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as each such increase, a “Commitment Increase”), provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result both at the time of any such request by and upon the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion effectiveness of any Incremental Amendment referred to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15below, (iix) any Lender no Default shall exist and (including any Eligible Transferee who will become a Lendery) may so provide an Incremental Commitment without the consent of all representations and warranties in this Agreement or any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 Loan Document shall be true and correct in a minimum aggregate amount all material respects and (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (ivii) the aggregate amount of all Incremental Commitments provided Commitment Increases pursuant to this Section 1.15, 2.20 shall not exceed the Maximum Incremental $250,000,000. Each Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment Increase shall be entitled to the benefits of the guarantees and security 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 Credit Documents to limit set forth in the other ABL Obligations on a pari passu basis.
(b) At next sentence). Each notice from the time of the provision of Incremental Commitments Borrower pursuant to this Section 1.152.20 shall set forth the requested amount of the relevant Commitment Increase. Commitment Increases may be provided, each ABL Borrower, the Administrative Agent and each such by any existing Lender or by any other Eligible Transferee which agrees to provide an Incremental Commitment bank or other financial institution (each, any such other bank or other financial institution being called an “Incremental Additional Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such increaseLender’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 (iior in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) Schedule I 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 modified to reflect refer to the revised Commitments effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the affected Lenders and (iii) 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 extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.152.20, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain (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 Lenders under the relevant Tranche or TranchesCommitment Increase (each, a “Commitment Increase Lender”) in respect of such increase, and incur additional Revolving 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 from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders)such that, (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Commitment represented by such Lender’s Commitment and (b) if, on the date of 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 Commitments), which prepayment shall be accompanied by accrued interest on the Total Revolving Loan Commitment pursuant to this Section 1.15) Loans being prepaid and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations incurred by any Lender in accordance with Section 2.15. 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 shall, absent manifest error, be final and conclusive and binding on all parties heretosentence.
(b) This Section 2.20 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at At any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Latest Maturity Date, the Company may, by written notice to the Administrative Agent (which the Administrative Agent shall promptly furnish to each Lender), request that one or more Lenders Persons (and/or one which may include the then-existing Lenders) establish Incremental Revolving Commitments or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in Term Loans under this Agreement, make Revolving Loans and participate in Letters of Credit pursuant theretoparagraph (a), it being understood that (x) if such Incremental Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and agreed, however, (y) the Company may agree to accept less than the amount of any proposed Incremental Commitment; provided that the minimum aggregate principal amount accepted shall equal the lesser of (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, $10,000,000 or (ii) the aggregate Incremental Commitments proposed to be provided in response to the Company's request. The minimum aggregate principal amount of any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lendershall be $10,000,000, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 or such lesser amount as may be agreed by the Administrative Agent). In no event shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) be greater than (i) $150,000,000 and (ii) any other amount so long as, shall in the case of this clause (ii), on a pro forma basis after giving effect to the incurrence of any such Incremental Commitment (assuming, in the case of any Incremental Revolving Credit Commitment or a delayed draw Incremental Term Loan, the full amount thereof is drawn) and after giving effect to any Acquisition consummated in connection therewith and all other appropriate pro forma adjustments, the Secured Leverage Ratio does not exceed 2.50 to 1.00 on a Pro Forma Basis (with any Incremental Equivalent Debt under Section 6.01(h) being deemed to constitute secured Indebtedness for the Maximum purposes of calculating the Secured Leverage Ratio even if unsecured). The Company may arrange for one or more banks or other financial institutions, which may include any Lender, to extend Revolving Credit Commitments, increase their existing Revolving Credit Commitments or provide Incremental Commitment Amount Term Loans in an aggregate amount equal to the amount of the Incremental Commitment. In the event that one or more of such Persons offer to increase or enter into such Revolving Credit Commitments, and such Persons, the Company, any other applicable Borrower and the Administrative Agent agree as to the amount of such Revolving Credit Commitments to be allocated to the respective Persons making such offers and the fees (vif any) all Revolving to be payable by the Company in connection therewith, the Company, any other applicable Borrower, such Persons and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement. Incremental Term Loans (and all interest, fees and other amounts payable thereon), may be made hereunder pursuant to an amendment, restatement or amendment and restatement (an “Incremental Commitment shall Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be entitled to necessary or appropriate, in the benefits reasonable opinion of the guarantees Company and security provided under the Credit Documents Administrative Agent, to effect the other ABL Obligations on a pari passu basisprovisions of this Section 2.19.
(b) At Notwithstanding the time foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this Section 2.19 unless on the proposed date of the provision effectiveness of such Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Financial Officer of the Company that the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall have been satisfied or waived by the Required Lenders and (ii) the Administrative Agent shall have received documents from the Company consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrowers to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation, (2) as of the date of the borrowing of such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement and (4) as of the date of the borrowing of such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Lenders providing such Acquisition-Related Incremental Commitments) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment. Nothing contained in this Section 2.19 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(c) The applicable Borrower and each such Incremental Term Loan Lender or other Eligible Transferee which agrees to provide an and/or Incremental Commitment (each, an “Incremental Lender”) Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment Agreement, with the effectiveness of such Incremental Lender’s Term Loan Lender and/or Incremental Revolving Credit Commitment to occur on the date set forth in of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Credit Commitments; provided that:
(i) (w) any commitments to make additional Initial Term A Loans shall have the same terms as the Initial Term A Loans, and shall form part of the same Class of Initial Term A Loans, (x) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term A Loans (“Other Incremental Term Loans”) shall be subject to compliance with clauses (ii) through (vi) below and (y) the terms of any Incremental Revolving Credit Commitments, to the extent not consistent with the then outstanding Revolving Credit Commitments, shall not be more favorable, taken as a whole, to the lenders providing such Incremental Revolving Credit Commitment Agreement, which than the terms of the then outstanding Revolving Credit Commitments (other than with respect to terms and conditions applicable after the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the then latest Revolving Facility Maturity Date,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.19 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(iii) the final maturity date in of any event such Other Incremental Term Loans shall be no earlier than the date on which (w) all fees required Latest Maturity Date applicable to be paid Term Loans in connection therewith effect at the time date of incurrence of such effectiveness Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Company and the Incremental Term Loan Lenders in their sole discretion), shall have been paid terms, to the extent not consistent with the Initial Term A Loans, shall not be more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term A Loans (includingother than with respect to terms and conditions applicable after the then latest Term Facility Maturity Date and except that to the extent any Incremental Term Loans consist of term “B” loans with annual amortization prior to final maturity that is not in excess of 1% of the original principal amount thereof, the terms of such term “B” loans may contain different terms consistent with then prevailing market terms for institutional loans (as reasonably determined by the Company and the Administrative Agent) and may include, without limitation, a customary excess cash flow sweep),
(iv) the Weighted Average Life to Maturity of any agreed such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the then outstanding Term Loans with the longest remaining Weighted Average Life to Maturity,
(v) there shall be no borrower (other than the Company) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Credit Commitments, and
(vi) Other Incremental Term Loans and Incremental Revolving Credit Commitments shall not be secured by any asset of the Company or its Subsidiaries other than the Collateral. Each party hereto hereby agrees that, upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each any Incremental Commitment Agreement, and at such time, (i) the Total Revolving Assumption Agreement or Incremental Term Loan Commitment under, and for all purposes ofAmendment, this Agreement shall be increased 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 Credit Commitments evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.19 and any such Collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the aggregate amount Administrative Agent with the Company’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. Each of such Incremental Commitments; provided the parties hereto hereby agrees that the Administrative Agent shall have consented may take any and all action as may be reasonably necessary to such increaseensure 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) Schedule I shall be deemed modified to reflect the revised Commitments all Revolving Loans in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense applicable Class of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as on a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretobasis.
Appears in 1 contract
Incremental Commitments. (a) So long as At any time prior to the Incremental Commitment Request Requirements are satisfied at repayment in full of all Loans and the time termination of the delivery of the request referred to belowall Commitments hereunder, the ABL Borrowers shall have the rightBorrower may, with the consent of, and in coordination with, by written notice to the Administrative Agent as (which the Administrative Agent shall promptly furnish to all of the matters set forth below in this Section 1.15each Lender), but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders Persons (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as may include the then-existing Lenders; provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an such Incremental Commitment as a result of any such request by the ABL Borrowers, Commitments and until such time, if any, as such Lender has agreed 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 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 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 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 executed and delivered to the Administrative Agent an Agent. Each Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15Amendment may, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to (x) effect the provisions of this Section 2.17 or (y) to the extent the terms and conditions of the Incremental Commitments are more favorable to the Lenders than comparable terms existing in the Loan Documents, to bring the terms and conditions of the existing Loans in line with the terms and conditions of the Incremental Loans necessary to achieve fungibility. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in clauses (a) and (c) of Section 4.02 shall have been satisfied and (ii) the Administrative Agent shall have received documents from the Borrower substantially consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (iii2) each provision as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitments 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 given date pursuant Pro Forma Basis) to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including such borrowing and to any Eligible Transferee who will become a Lender)) concurrent transactions and any substantially concurrent use of at least $10,000,000 and in integral multiples of $1,000,000 in excess proceeds thereof, (iv3) the aggregate amount representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of all Incremental Commitments provided the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to this Section 1.15such Acquisition-Related Incremental Commitment, shall not exceed customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Maximum Incremental Commitment Amount Administrative Agent and (vthe Borrower) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the benefits incurrence of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basissuch Acquisition-Related Incremental Commitment.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent The Loan Parties and each such Incremental Term Loan Lender or other Eligible Transferee which agrees to provide an and/or Incremental Commitment (each, an “Incremental Lender”) Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with Amendment and such other documentation as the effectiveness Administrative Agent shall reasonably specify to evidence the Incremental Commitments of such Incremental Term Loan Lender and/or Incremental Revolving Lender’s . Each Incremental Commitment Amendment shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Credit Commitments; provided that:
(i) any commitments to occur on 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 set forth in of any such Other Incremental Commitment Agreement, which date in any event 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 on (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 (wx) all 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 required 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 paid determined by the Borrower and the applicable Incremental Revolving Lenders or Incremental Term Loan Lenders; provided that in connection therewith 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 of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement Term Loans are incurred shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all 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 under 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 relevant Tranche 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 Tranches participate 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 borrowing of Initial Term B Loans on a pro rata basis, and (ii) all Revolving Loans under in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the relevant Tranche or Tranches applicable Class of outstanding Revolving Loans on a pro rata on basis. Notwithstanding anything to the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to contrary, this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay 2.17 shall supersede any provisions in Section 2.15 or Section 9.02 to the respective Lenders any costs of the type referred to in contrary. Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence2.18. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto[Reserved].
Appears in 1 contract
Sources: Credit Agreement (Integrated Device Technology Inc)
Incremental Commitments. (a) So long as At any time prior to the Incremental Commitment Request Requirements are satisfied at repayment in full of all Loans and the time termination of the delivery of the request referred to belowall Commitments hereunder, the ABL Borrowers shall have the rightBorrower may, with the consent of, and in coordination with, by written notice to the Administrative Agent as (which the Administrative Agent shall promptly furnish to all of the matters set forth below in this Section 1.15each Lender), but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders Persons (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as may include the then-existing Lenders; provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an such Incremental Commitment as a result of any such request by the ABL Borrowers, Commitments and until such time, if any, as such Lender has agreed may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loan Commitments under this paragraph (a), it being understood that (x) if such Incremental Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent and, in the case of Incremental Revolving Credit Commitments, each Issuing Bank shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld, conditioned or delayed) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment. The minimum aggregate principal amount of Incremental Commitments established pursuant to any Incremental Amendment shall be $10,000,000 (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of any Incremental Commitments established at any time pursuant to this clause (a) exceed the Maximum Incremental Amount at such time. Incremental Commitments shall be established pursuant to an amendment, supplement or 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 executed and delivered to the Administrative Agent an Agent. Each Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15Amendment may, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other LenderLenders, 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 (iiix) each provision effect the provisions of this Section 2.18 or (y) to the extent the terms and conditions of the Incremental Commitments on a given date pursuant 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 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) 2.18 unless on the proposed date of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to such increasethe proviso set forth below, the conditions set forth in clauses (a) and (c) of Section 4.02 shall have been satisfied and (ii) Schedule I the Administrative Agent shall be deemed modified have received documents from the Borrower substantially consistent with those delivered on the Effective Date as to reflect the revised Commitments organizational power and authority of the affected Lenders and (iii) Borrower to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any increase in the Total Revolving Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (2) as of the date of the initial borrowing pursuant to this such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 1.157.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and with to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the relevant ABL Borrowers under the relevant Tranche being jointly representations and severally obligated to pay to the respective Lenders any costs warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the type referred date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to in Section 1.11 such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such amounts, as representations and warranties to be reasonably determined by the respective LendersAdministrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, to compensate them for funding and immediately after giving effect to, the various Revolving Loans during an existing Interest Period (rather than at the beginning incurrence of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoAcquisition-Related Incremental Commitment.
Appears in 1 contract
Sources: Credit Agreement (Maxlinear, Inc)
Incremental Commitments. (a) So long as The Company may, by written notice to the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the General Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to request that the Administrative Agent an Incremental Commitment Agreement in respect thereof as total US/UK Commitments be increased; provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) that the aggregate amount of such increase shall not exceed $150,000,000. 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 Incremental 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 Section 1.15, subsection 6.18 without the prior written consent of the General Administrative Agent (which shall not exceed be unreasonably withheld). The US/UK Borrowers and each Augmenting Lender shall execute all such documentation as the Maximum Incremental General Administrative Agent shall reasonably specify to evidence its US/UK Commitment Amount and (v) all Revolving Loans (and all interestand/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, fees and other amounts payable thereon)or chooses not to arrange for, made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basisAugmenting Lenders.
(b) At the time Each of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, parties hereto hereby agrees that the General Administrative Agent may take any and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that actions as may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as reasonably necessary to the effectiveness of each Incremental Commitment Agreementensure that, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment US/UK Commitments pursuant to this Section 1.15subsection 6.18, the outstanding US/UK Loans (if any) and are held by the US/UK Lenders in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the General Administrative Agent (i) by requiring the outstanding US/UK Loans to be prepaid with the relevant ABL Borrowers under the relevant Tranche being jointly 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 severally obligated to pay to the respective Augmenting Lenders or (iii) by any costs combination of the type referred foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to subsection 6.14, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in Section 1.11 the total US/UK Commitments shall become effective under this subsection 6.18 unless, (i) on the date of such increase, the conditions set forth in subsection 8.2 shall be satisfied and the General Administrative Agent shall have received a certificate to that effect dated such amounts, as reasonably determined date and executed by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning chief financial officer of the respective Interest Period, based upon rates then applicable theretoCompany and (ii) in connection the General Administrative Agent shall have received (with any sufficient copies for each of the Increasing Lenders and Augmenting Lenders) such repayment and/or incurrence. All determinations by any Lender pursuant to customary closing documentation as the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoGeneral Administrative Agent shall have reasonably requested.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Reebok International LTD)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, with the Administrative Agent as to all of the matters set forth below in this Section 1.152.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date Effective Date, and prior to the Revolving Loan Final Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.152.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.152.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each Eligible Transferee who will become a Lender shall be required to be reasonably satisfactory to the Administrative Agent, (iv) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 2.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 5,000,000 and in integral multiples of $1,000,000 in excess thereof, (ivv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.152.15, shall not exceed the Maximum Incremental Commitment Amount and (vvi) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.152.15, US Company, each ABL US Borrower, UK Company, each UK Borrower, Canadian Company, each Canadian Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 2.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I 1.01(a) shall be deemed modified to reflect the revised Revolving Loan Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Revolving Notes will be issued, at the expense of each applicable ABL Borrowerthe Borrowers, to such Incremental Lender in conformity with the requirements of Section 1.052.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.152.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or TranchesLenders, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), ) (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate LIBOR Loans or EURIBOR Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Revolving Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing Borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Revolving Loan Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.152.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 2.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) The terms and provisions of the Revolving Loans made pursuant to the Incremental Commitments shall be identical to the Revolving Loans; provided that the yield applicable to the Revolving Loans made pursuant to the Incremental Commitments (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Revolving Loans) shall not be greater than the applicable yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Revolving Loans (including any upfront fees or original issue discount payable to the initial Lenders hereunder) unless the Applicable Margin with respect to the Revolving Loans is increased so as to cause the then applicable yield under this Agreement on the Revolving Loans to equal the yield then applicable to the Revolving Loans made pursuant to the Incremental Commitment (after giving effect to all upfront or similar fees or original issue discount payable with respect to the Revolving Loans) made pursuant to the Incremental Commitment.
(e) In the event the Borrowers from time to time obtain any Incremental Commitments under this Section 2.15, all availability levels hereunder denominated in Dollars, Canadian Dollars, Euros or Pounds Sterling hereunder (including, without limitation, in the definitions of “Applicable Margin”, “Minimum Availability Amount” and “Payment Conditions” and in Section 10.04(a)) shall be increased in proportion to the ratio of such Incremental Commitments to the Total Revolving Loan Commitment as in effect immediately prior to the Borrowers obtaining such Incremental Commitments and, for the avoidance of doubt, all such levels denominated in percentages shall be calculated based on the Total Revolving Loan Commitment after giving effect to such Incremental Commitments.
Appears in 1 contract
Incremental Commitments. The Company may, upon five (a5) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred Business Days’ notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15Agent, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to increase the Revolving Loan Maturity Date, that Commitment amount by adding one or more Lenders (and/or one lenders or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting increasing the Revolving Loan Commitments andCommitment of a Lender, determined by the Company in its sole discretion, subject to the applicable terms consent of the Administrative Agent, Swingline Lender and conditions contained in this AgreementIssuing Banks (such consent not to be unreasonably withheld), make Revolving Loans which lender or lenders are willing to commit to such increase (each such lender, a “New Lender,” and participate in Letters of Credit pursuant theretosuch commitment, it being understood and agreedthe “Incremental Commitment”); provided, however, that (i) no Lender shall be obligated to provide an the Company may not elect any Incremental Commitment as a result after the occurrence and during the continuance of any such request by the ABL Borrowersan Event of Default, 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 an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent Event of Default that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a would result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase Incremental Commitment, (ii) each Incremental Commitment shall be in an amount not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (iii) after giving effect to all Incremental Commitments the Total aggregate Revolving Loan Commitments shall not exceed the Dollar Equivalent of $5,000,000,000 and (iv) on the effective date of the Incremental Commitment, each New Lender will, to the extent 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 delivering such counterpart to the Administrative Agent. Over the term of the Agreement the Company shall increase the Revolving Loan Commitments no more than five (5) times. Notwithstanding anything to the contrary in this Agreement, any Incremental Commitment made pursuant to this Section 2.14 may be effected by adding one or more tranches of Revolving Loan Commitments that are denominated in an Alternative Currency and/or term loan commitments (which shall be deemed to be “Revolving Loan Commitments” for purposes of this Section 2.14 (other than clause (iv) above)), and the Lenders 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 such tranche, provided that the aggregate amount of the commitments do not exceed the Dollar Equivalent of $5,000,000,000 at any time. Notwithstanding anything to the contrary herein, no Lender shall be required to increase its Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto2.14.
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to belowThe Borrower may, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior Closing Date, by written notice to the Revolving Loan Maturity Date, that Administrative Agent request the establishment of (i) one or more Lenders new term loan commitments (and/or the “New Term Loan Commitments”), (ii) one or more other Persons which are Eligible Transferees additional tranches of revolving credit commitments (the “Additional Revolving Credit Commitments”) and/or (iii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” and, together with the New Term Loan Commitments and which will become Lenders as provided below) provide the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments constituting Revolving Loan 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 the Administrative Agent (and, subject solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Additional Lender’s providing any Incremental Commitments to the applicable terms and conditions contained in this Agreementextent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, make Revolving Loans and participate in Letters of Credit pursuant theretoas applicable, it being understood and agreedto such Additional Lender; provided, howeverfurther, that (i) no any Lender shall be obligated 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 result of any such request Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the ABL BorrowersBorrower, 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 an and the Lenders providing the applicable Incremental Commitment Agreement in respect thereof as provided 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 this Section 1.15, the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Lender shall not be obligated Permitted Acquisition as are material to fund the interests of the Lenders but only to the extent that the Borrower or any Revolving Loans in excess 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 Loan Commitment as in effect Credit Commitments and the Revolving Credit Loans and shall be secured only by the Collateral securing the Obligations; (3) noneither the Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless suchthe Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the Increased Amount Date); (4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitment Commitments and to the making of any Loans pursuant thereto; provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the absence of a Default or Event of Default shall not constitute a condition to the making of such Incremental Commitments; (5) the Incremental Commitments and related Loans made pursuant thereto shall be effected pursuant to one or more amendments (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Parent GuarantorsGuarantor, the Borrower, each 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 1.155.4(d)), and the Administrative Agent; and (ii6) the Borrower shall make any Lender (including any Eligible Transferee who will become 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 Lender) may so provide an separate Class of Term Loans for all purposes of this Agreement. Each of the parties hereto hereby agrees that each Incremental Commitment Amendment may, without the consent of any other LenderLenders, (iii) each provision of Incremental Commitments on a given date pursuant effect such amendments to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 Agreement and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to as may be necessary or appropriate, in the other ABL Obligations on a pari passu basis.
(b) At the time reasonable opinion of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees the Borrower, to provide an Incremental Commitment effect the provisions of this Section 2.17.
(each, an “Incremental Lender”c) shall execute and deliver to Notwithstanding the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (includingforegoing, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to prior written consent of the effectiveness of each Incremental Commitment Agreement, and at such timeRequired Lenders, (i) the Total Revolving Loan Commitment underMaturity 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 all purposes of, this Agreement such Class of Term Loans shall automatically be increased by the aggregate 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 any “MFN” protection applicable to such Additional Revolving Credit Commitments; provided .
(e) Each of the parties hereto hereby agrees that the Administrative Agent may, with the consent of the Borrower (not to be unreasonably withheld), take any and all action as may be reasonably necessary to ensure that all New Term Loans that, pursuant to the applicable Incremental Amendment, are to be of the same Class of an Existing Class of Term Loans, when originally made, are included in each Borrowing of such Existing Class of Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Term Loans to be converted into a Borrowing of Term Loans that are ABR Loans on the date the applicable New Term Loan is made, or by allocating a portion of each such New Term Loan to each outstanding Borrowing of LIBOR Term Loans on a pro rata basis. Any conversion of Borrowing of LIBOR Term Loans to Term Loans that are ABR Loans required by the preceding sentence shall have consented be subject to Section 2.12. If any New Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Term Loans, then the interest rate thereon for such increaseInterest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Amendment. In addition, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iiii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15New Term Loans are not Other Term Loans, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders scheduled amortization payments under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent Section 2.5(b) required to be maintained as Euro Rate Loans) may have made after the making of such 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 shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case pro rata basis to the extent necessary so that all 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 prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Lenders under the relevant Tranche or Tranches participate Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding borrowing Letters of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Total Revolving Loan Commitment pursuant to this Section 1.15) Credit Loans being prepaid and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations incurred by any Lender in accordance with Section 2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretosentence.
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior Prior to the Revolving Loan Maturity Commitment Termination Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments andBorrower may, subject by written notice to the applicable terms and conditions contained in this AgreementFacility Agent, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that request an increase to the existing Commitments (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowersincrease, and until such time, if any, as such Lender has agreed in its sole discretion to provide an any “Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a LenderCommitment”)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At No increase to the time existing Commitments shall occur, and no Person may provide an Incremental Commitment, in each case, without the prior written consent of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Facility Agent and each such Lender or other Eligible Transferee Lender, which agrees to provide an Incremental Commitment consent shall be in the sole discretion of the Facility Agent and the Lenders (eacheach approved Person, if any, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of No Lender or any provision of Incremental Commitments pursuant other Person shall have any obligation to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche provide any or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Incremental Commitments until such time such Person becomes an Incremental Lender, and any Lender may elect or decline, in its sole discretion, to provide an Incremental Commitment.
(d) Each Incremental Commitment shall become effective as of the date agreed to among Borrower, the Facility Agent and the applicable Incremental Lenders under (the relevant Tranche “Incremental Increase Date”), so long as (i) no Event of Default shall exist on such Incremental Increase Date before or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase such Incremental Commitments; (ii) the Incremental Commitments shall be effected pursuant to one or more joinder agreements, in form and substance satisfactory to the Facility Agent and the Lenders, and each of which shall be recorded in the Total Revolving Loan Commitment pursuant to this Section 1.15) Register and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay shall be subject to the respective Lenders any costs of the type referred to requirements set forth in Section 1.11 2.11(c); and such amounts, as (iii) Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably determined requested by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) Facility Agent in connection with any such repayment and/or incurrence. All determinations transaction.
(e) On any Incremental Increase Date, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender having an existing Commitment shall assign to each of the Incremental Lenders having a Commitment, and each such Incremental Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Advances outstanding on the Incremental Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances will be held by such Lenders having existing Commitments and Incremental Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Commitments to the Commitments; (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Advance made thereunder (an “Incremental Advance”) shall be deemed, for all purposes, an Advance and (iii) each Incremental Lender shall become a Lender with respect to the Incremental Commitment and all matters relating thereto.
(f) The Facility Agent shall notify the Lenders, promptly upon determination of any Incremental Increase Date, of (i) the Incremental Commitments and the Incremental Lenders, and (ii) in the case of each notice to any Lender pursuant having Exposure, the respective interests in such Lender’s Advances, in each case subject to the preceding sentence shall, absent manifest error, assignments contemplated by this Section 2.14.
(g) The terms and provisions of the Incremental Advances shall be final and conclusive and binding on all parties heretoidentical to the Advances.
Appears in 1 contract
Sources: Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)
Incremental Commitments. On and after (ax) So long as the Delayed Draw Termination Date or (y) solely in connection with an Incremental Commitment Request Requirements are satisfied at Term Loan incurred to consummate the time of the delivery of the request referred to below▇▇▇▇▇▇▇ Acquisition, the ABL Borrowers shall have the right, with the consent of, and in coordination withTenth Amendment Effective Date, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request Borrower may at any time and or from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing by notice to the Administrative Agent (or any affiliate thereof)an “Incremental Term Loan Request”), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that request one or more new commitments of Term Loans which may be set forth in such of the same Class as any outstanding Term Loans (an “Incremental Commitment Agreement shall have been satisfiedTerm Loan Increase”) or a new Class of term loans (collectively with any Incremental Term Loan Increase, the “Incremental Term Loan Commitments”). The Administrative Agent shall promptly notify each Lender as forward any Incremental Term Loan Request to the effectiveness of each Incremental Commitment Agreementall Lenders, and at any interested Lenders shall as soon as practicable, and in any case (but excluding any Incremental Term Loan Request for the incurrence of Incremental Term Loans to consummate the ▇▇▇▇▇▇▇ Acquisition) within ten Business Days (or such timeshorter period as may be agreed to by the Lender Representative) following receipt of such notice, provide the Borrower and the Administrative Agent a written offer to provide such Incremental Term Loan (including portions thereof) with terms and provisions in accordance with this Section 2.17 (any such Lender, an “Increasing Lender”); provided that (i) other than in the Total Revolving case of any Incremental Term Loan Commitment underRequest for the incurrence of Incremental Term Loans to consummate the ▇▇▇▇▇▇▇ Acquisition, and for all purposes ofif no such offer is provided by a Lender within such 10 Business Day-period (or such shorter period as may be agreed to by the Lender Representative), this Agreement such Lender shall be increased by the aggregate amount deemed to have declined to exercise such right of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increaseoffer, (ii) Schedule I the Borrower shall be deemed modified under no obligation to reflect the revised Commitments of the affected Lenders accept any such offer from such Lender and (iii) to solely in the extent requested by case of any Incremental Term Loan Request for the incurrence of Incremental Term Loans to consummate the ▇▇▇▇▇▇▇ Acquisition, unless otherwise agreed to in writing by Blackstone (in its sole discretion), such Incremental Term Loans (and the related Incremental Term Loan Commitments) shall only be provided by Blackstone and/or any Blackstone Designee. No Lender shall have any obligation, express or implied, to provide Incremental Term Loans, and any decision by a Lender to provide Incremental Term Loans shall be made in its sole discretion independently from any other Lender, Notes will be issued, at . Only the expense consent of each applicable ABL Borrower, Lender shall be required for it to such provide Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments Term Loans pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche 2.17. The Borrower may accept some or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the offered amounts or designate new lenders (provided, in any event, such new lender is an Eligible Assignee), as additional Lenders under the relevant Tranche or Tranches participate hereunder in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to accordance with this Section 1.15) 2.17 (the “Additional Lenders”, and together with the relevant ABL Borrowers under Increasing Lenders and the relevant Tranche being jointly Lenders providing Incremental Term Loans incurred to consummate the ▇▇▇▇▇▇▇ Acquisition, the “Incremental Lenders”), which Additional Lenders may provide all or a portion of such Incremental Term Loans. The Borrower shall have discretion to adjust the allocation of such Incremental Term Loan Commitments (other than Incremental Term Loan Commitments incurred to consummate the ▇▇▇▇▇▇▇ Acquisition) among the Increasing Lenders and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Additional Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and The Borrower may from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered written notice to the Administrative Agent an elect to request (i) incremental revolving credit commitments (the “Incremental Commitment Agreement in respect thereof as provided in clause (bRevolving Credit Commitments”) for the purpose of this Section 1.15, such Lender shall not be obligated to fund any increasing the aggregate Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, Credit Commitments and/or (ii) any Lender incremental term loan commitments (including any Eligible Transferee who will become a Lenderthe “Incremental Term Loan Commitments,” and together with the Incremental Revolving Credit Commitments, the “Incremental Commitments”) may so provide an Incremental Commitment without for the consent purpose of any other Lender, increasing the aggregate Term Loan Commitments; provided that (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv1) the aggregate amount of all Incremental Commitments provided shall not (as of any date of incurrence thereof) exceed $300,000,000 and (2) the aggregate amount of each increase in the Revolving Credit Commitments and/or Term Loan Commitments pursuant to this section shall not be less than $25,000,000 or a whole multiple of $1,000,000 in excess thereof. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Commitment (any such Person, a “New Lender”). Any Person offered or approached to provide all or a portion of any Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Revolving Credit Commitments and Revolving Credit Loans and Term Loan Commitments and Term Loans made pursuant to this Section 1.15shall be subject to the same terms applicable to the Revolving Credit Commitments and Revolving Credit Loans or Term Loan Commitments and Term Loans, shall not exceed as applicable, made on the Maximum Incremental Commitment Amount Closing Date, except that the pricing, maturity and (v) all Revolving amortization terms applicable to any Term Loans (and all interest, fees and other amounts payable thereon), made pursuant to this Section shall be as agreed among the Borrower, the Lenders providing such Term Loans and the Administrative Agent; provided, however, that (i) the maturity date of any such Term Loans shall be no earlier than the latest maturity date of the then-outstanding Term Loans and (ii) the weighted average life of such Term Loans shall be no shorter than the then-remaining weighted average life of the then-outstanding Term Loans. Any Incremental Revolving Credit Commitment shall be available on a revolving basis from and after the date of the closing of such Incremental Revolving Credit Commitment until the Revolving Credit Maturity Date. Any Incremental Term Loan Commitment shall be available on a single draw basis on the date of the closing of such Incremental Term Loan Commitment. Any Incremental Commitment shall become effective as of the related Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Commitments and (2) the making of any Loans or the issuance of any Letters of Credit pursuant thereto;
(B) all Term Loans and Revolving Credit Loans made, and all reimbursement obligations in respect of Letters of Credit issued, pursuant to any Incremental Commitments shall constitute Obligations of the Borrower, shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis and shall otherwise be subject to the same terms and conditions as other Term Loans (except as provided above), Revolving Credit Loans and Letters of Credit, respectively;
(C) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) agree to make all payments and adjustments necessary to effect such reallocation, and the Borrower shall pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment);
(D) any New Lender with an Incremental Commitment shall be entitled to the benefits same voting rights as the existing Lenders under the applicable Credit Facility, and any Extensions of Credit made in connection with each Incremental Commitment shall receive proceeds of prepayments on the same basis as the other Extensions of Credit of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.same kind made hereunder;
(bE) At the time of the provision of Incremental Commitments shall be effected pursuant to this Section 1.15, one or more joinder agreements (each ABL a “Joinder Agreement”) executed and delivered by the Borrower, the Administrative Agent and the applicable New Lenders (which Joinder Agreement(s) shall be in form and substance reasonably satisfactory to the parties thereto and 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 5.14);
(F) the Administrative Agent and the Lenders shall have received from the Borrower a certificate of a Responsible Officer of the Borrower demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Article X (based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable) both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Commitment and (y) the making of any Loans pursuant thereto (with any existing and/or then-undrawn Incremental Term Loan Commitment being deemed to be fully funded);
(G) the Administrative Agent and the Lenders shall have received from the Borrower a certificate of a Responsible Officer of the Borrower demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Consolidated Senior Secured Leverage Ratio of the Borrower is less than or equal to 3.00 to 1.00, as calculated on a Pro Forma Basis (based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable), assuming that any then-undrawn pre-existing Term Loan Commitments and any Incremental Term Loan Commitments have been funded and giving effect to any drawings under Incremental Revolving Credit Commitments to be made on such date and the use of proceeds thereof;
(H) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing the borrowing of Term Loans and/or Revolving Credit Loans, as applicable, and the request of Letters of Credit pursuant to Incremental Revolving Credit Commitments) reasonably requested by the Administrative Agent in connection with any such transaction; and
(I) each Lender or New Lender providing such Incremental Commitment shall receive any applicable flood insurance due diligence information and flood insurance compliance reasonably satisfactory to such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment New Lender.
(each, an “Incremental Lender”b) The New Lenders shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date be included in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments determination of the affected Required Lenders and (iii) to the extent requested by New Lenders will not constitute a separate voting class or separate tranche of Loans for any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05purposes under this Agreement.
(c) At the time of On any provision of Increased Amount Date on which any Incremental Commitments pursuant to this Section 1.15Commitment becomes effective, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (subject to the extent required foregoing terms and conditions, each New Lender with an Incremental Commitment shall become a Lender hereunder with respect to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoIncremental Commitment.
Appears in 1 contract
Incremental Commitments. (a) So long as The Borrower may, from time to time, by written notice to the Lender, request additional Revolving Commitments (collectively, “Incremental Commitment Request Requirements are satisfied Commitments”), from the Lender (in the sole discretion of the Lender), in an aggregate principal amount of up to $10,000,000; provided that at the time of the delivery incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the request referred to belowproceeds thereof (assuming the full utilization thereof), the ABL Borrowers no Event of Default shall have occurred and be continuing or would result therefrom; provided, further, that the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters Borrower may make only 1 such request. Such notice shall set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender the amount of the additional Revolving Commitments being requested (which shall be obligated to provide an Incremental Commitment as in minimum increments of $2,500,000 and a result minimum amount of any such request by the ABL Borrowers$5,000,000), and until (ii) the date on which such time, if any, as such Lender has agreed in its sole discretion additional Revolving Commitments are requested to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause become effective (b) of this Section 1.15, such Lender which shall not be obligated less than 15 Business Days nor more than 60 calendar days after the date of such notice, unless otherwise agreed to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without by the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) The Borrower shall execute and deliver to the Administrative Agent an Lender such documentation as the Lender shall reasonably specify to evidence the Incremental Commitment Agreementof the Lender. Each of the parties hereto hereby agrees that, with upon the effectiveness of any Incremental Commitment, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby. Any such Incremental Lenderdeemed amendment may be memorialized in writing by the Lender with the Borrower’s Incremental consent (not to be unreasonably withheld or delayed).
(c) The terms of each additional Revolving Commitment shall be reasonably satisfactory to occur the Lender and in any event:
(d) (i) shall rank pari passu in right of payment and of security with the existing Revolving Loans;
(e) (ii) all material terms of any additional Revolving Commitments and Revolving Loans under such additional Revolving Commitments shall be identical to the existing Revolving Commitments and Revolving Loans.
(f) No additional Revolving Commitments shall become effective under this Section 2.11 unless, on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such timeeffectiveness, (i) the Total Revolving Loan Commitment under, conditions set forth in paragraphs (a) and for all purposes of, this Agreement (b) of Section 4.2 shall be increased by satisfied as if it was a borrowing date and the aggregate amount of such Incremental Commitments; provided that the Administrative Agent Lender shall have consented received a certificate to that effect dated such increase, date and executed by a Financial Officer of the Borrower; and (ii) Schedule I the Lender shall be deemed modified to reflect the revised Commitments have received closing certificates, opinions of the affected Lenders counsel and (iii) to the extent other customary documentation requested by any Incremental the Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Sources: Credit Agreement (Backblaze, Inc.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to belowThe Borrower Representative may, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent on behalf of any of the LendersBorrower, to request at any time and or from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Closing Date, that by notice to Administrative Agent (an “Incremental Loan Request”), request (A) one or more Lenders new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental increases in the amount of the Revolving Commitments constituting (a “Revolving Loan Commitments Commitment Increase” and, subject collectively with any Incremental Term Commitments, the “Incremental Commitments”), in an aggregate principal amount 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 applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result incurrence of any such request by Incremental Loans (assuming the ABL Borrowersfull 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 until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered buybacks (limited to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (bactual amount of cash paid) of this Section 1.15, such Lender shall not be obligated to fund any Revolving the Initial Term Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such and the Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 Term Loans and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits voluntary prepayments of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than accompanied by permanent commitment reductions thereto), payments utilizing the then outstanding Borrowings yank-a-bank provisions of the respective such Loans)Credit Documents, in each case prior to such time other than any such voluntary prepayments (and commitment reductions), and buybacks to the extent necessary so that all 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 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 relevant Tranche or Tranches participate Fixed Incremental Amount and/or Prepayment Amount concurrently with the incurrence of any amounts in each outstanding borrowing reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Revolving Loans Incremental Credit Facilities incurred other than under the relevant Tranche or Tranches pro rata on Incremental Incurrence-Based Amount may be re-designated at any time, as the basis of their respective Commitments Borrower Representative may elect from time to time, as incurred under the relevant Tranche or Tranches (after giving effect to any increase in Incremental Incurrence-Based Amount if the Total Revolving Loan Commitment pursuant to this Section 1.15) and with Borrowers meet the relevant ABL Borrowers applicable ratio under the relevant Tranche being jointly and severally obligated to pay Incremental Incurrence-Based Amount at such time on a pro forma basis, at any time subsequent to the respective Lenders any costs incurrence of such Incremental Credit Facility by written notice to the type referred to in Section 1.11 and Administrative Agent on such amountsdate. (for purposes of clarity, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount and/or incurrencethe Prepayment Amount, as applicable, as of the date of such redesignation by the amount of such Indebtedness so redesignated). All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.NAI-1537241654v2
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to belowrequest, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to Borrower may request at any time and from time to time after the Initial Borrowing Effective Date and prior to the Revolving Loan Maturity Commitment Termination Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) the Lender provide an Incremental Commitments constituting Revolving Loan Commitments Commitment and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit Advances pursuant thereto, ; it being understood and agreed, however, that (i) no the Lender shall not be obligated to provide an Incremental Commitment as a result of any such request by the ABL BorrowersBorrower, and until such time, if any, as such the Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.152.14(b), such the Lender shall not be obligated to fund any Revolving Loans Advances in excess of its Revolving Loan the Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.152.14(b) below, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide each provision of an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 2.14(b) below shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 25,000,000 and in integral multiples of $1,000,000 25,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.152.14(b) below, shall not exceed the Maximum Incremental Commitment Amount $250,000,000, and (v) all Revolving Loans Advances made pursuant to Incremental Commitments (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment ) shall be entitled to the benefits of the guarantees obligations under this Agreement and security provided under the Credit Documents to the other ABL Obligations on a pari passu basisapplicable Loan Documents.
(b) At the time of the provision of an Incremental Commitments Commitment pursuant to this Section 1.15, each ABL Borrower2.14, the Administrative Agent Borrower and each such the Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date (the "Incremental Commitment Date") set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof))Lender, (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 2.14(b) shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Lender's Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that Commitment on the Administrative Agent shall have consented to Incremental Commitment Date for such increase, Incremental Commitment."
(iif) Schedule I shall be deemed modified to reflect the revised Commitments Exhibit E (Form of the affected Lenders and (iiiMortgage) to the extent requested Credit Agreement is hereby replaced by any Incremental Lender, Notes will be issued, at the expense form of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05Exhibit E attached hereto.
(cg) At The Credit Agreement is amended by adding Exhibit L attached hereto as an exhibit thereto.
(h) Each reference in the time Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like import, and each reference to the "Credit Agreement" in any provision of Incremental Commitments the other Loan Documents, shall mean and refer to the Credit Agreement as amended hereby.
(i) Each reference in any of the Loan Documents to "Note" shall mean and refer to the Note executed and delivered by the Borrower pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain 3.01(a)(viii) of the Lenders under Credit Agreement and any other Note executed and delivered by the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (Borrower hereafter pursuant to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings Section 2.14 of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to Credit Agreement as amended by this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoAmendatory Agreement.
Appears in 1 contract
Incremental Commitments. (a) So long as At any time prior to the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to belowLatest Maturity Date, the ABL Borrowers shall have the rightBorrower may, with the consent of, and in coordination with, by written notice to the Administrative Agent as (which the Administrative Agent shall promptly furnish to all of the matters set forth below in this Section 1.15each Lender), but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders Persons (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as may include the then-existing Lenders; provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an such Incremental Commitment as a result of any such request by the ABL Borrowers, Commitments and until such time, if any, as such Lender has agreed may elect or decline in its sole discretion to provide an Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loans under this paragraph (a), it being understood that (w) if such Incremental Term Loan Commitment and executed and delivered is to be provided by a Person that is not already a Lender, the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect have consented to such Incremental Commitment provided Person being a Lender hereunder to the extent such consent would be required pursuant to this Section 1.159.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld), (x) if such Incremental Revolving Credit Commitment is to be provided by a Person that is not already a Revolving Lender, the Administrative Agent and each Issuing Bank shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment; provided that the minimum aggregate principal amount accepted shall equal the lesser of (i) $10,000,000 or (ii) the aggregate Incremental Commitments proposed to be provided in response to the Borrower’s request. The minimum aggregate principal amount of any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lendershall be $10,000,000, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 or such lesser amount as may be agreed by the Administrative Agent). In no event shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this paragraph (a) (when taken together with any Incremental Equivalent Debt incurred prior to such date) exceed an amount equal to the sum of: (i) (x) $50,000,000, plus (y) an amount equal to 1.0x of Consolidated EBITDA for the most recently completed four fiscal quarter period for which financial statements are required to be delivered pursuant to Sections 5.01(a) or (b) prior to the date of the incurrence of such Incremental Commitment, plus (z) an amount up to $75,000,000; provided, any such amount under this clause (i)(z) is incurred within 90 days following the Effective Date (the “Post-Closing Period”), (ii) the aggregate principal amount of (x) voluntary prepayments of the Term Loans and any Incremental Equivalent Debt and (y) voluntary prepayments of any Revolving Loans to the extent accompanied by a dollar-for-dollar permanent reduction in the Revolving Credit Commitments with respect thereto, in each case under clauses (x) and (y), other than prepayments from proceeds of Long-Term Indebtedness and (iii) any additional amount so long as on the date of incurrence of such Incremental Commitment (subject to the terms of Section 1.152.17(b) below), shall in the case of this clause (iii), the Secured Leverage Ratio does not exceed 1.50 to 1.00 on a Pro Forma Basis (assuming the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interestfull amount available thereunder and, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled prior to the benefits of Initial Term A Termination Date, any unused Initial Term A Loan Commitments are drawn and without netting the guarantees and security provided cash proceeds thereof) with any Incremental Equivalent Debt under the Credit Documents Section 6.01(h) being deemed to the other ABL Obligations constitute Indebtedness secured on a pari passu basisbasis with the Term Facilities for the purposes of calculating the Secured Leverage Ratio even if unsecured. The Borrower shall be deemed to have utilized the amounts under clause (ii) prior to using the amounts under clause (i) or (iii) and the Borrower shall be deemed to have utilized the amounts under clause (iii) (to the extent compliant therewith) prior to utilization of the amounts under clause (i). The Borrower may arrange for one or more banks or other financial institutions, which may include any Lenders, to extend Revolving Credit Commitments, provide Incremental Term Loans or increase their applicable existing Term Loans in an aggregate amount equal to the amount of the Incremental Commitment. In the event that one or more of such Persons offer to enter into such Revolving Credit Commitments, subject to satisfaction of the other conditions set forth herein, such Persons, each Issuing Bank and the Administrative Agent shall execute and deliver an Incremental Assumption Agreement. Incremental Term Loans may be made hereunder pursuant to an amendment, supplement or amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Loan Parties, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. Each Incremental Assumption Agreement and each Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.17. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in paragraphs (a) and (c) of Section 4.02 shall have been satisfied, (ii) the Administrative Agent shall have received documents from the Borrower consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment and (iii) the Administrative Agent shall have received customary legal opinions or other certificates reasonably requested by the it in connection with any such transaction; provided that, with respect to any Incremental Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (2) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment. Nothing contained in this Section 2.17 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent The Loan Parties and each such Incremental Term Loan Lender or other Eligible Transferee which agrees to provide an and/or Incremental Commitment (each, an “Incremental Lender”) Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement or Incremental Term Loan Amendment, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment Agreement, with the effectiveness of such Incremental Lender’s Term Loan Lender and/or Incremental Revolving Credit Commitment to occur on the date set forth in of such Incremental Commitment AgreementRevolving Lender. Each Incremental Assumption Agreement or Incremental Term Loan Amendment, which as applicable, 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 A Loans shall have the same terms as the Initial Term A Loans, and shall form part of the same Class of Initial Term A Loans,
(ii) any commitments to make Incremental Revolving Loans shall have the same terms as the Initial Revolving Loans and shall form part of the same Class of Initial Revolving Loans,
(iii) any commitments to make Term Loans with pricing, maturity, amortization and/or other terms different from the Initial Term A Loans (“Other Incremental Term Loans”) shall be subject to compliance with clauses (iv) through (viii) below,
(iv) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.17 shall be secured by Liens that rank equal in priority with the Liens securing the existing Loans,
(v) (i) the final maturity date in of any event such Other Incremental Term Loans shall be no earlier than the Latest Maturity Date applicable to Term Loans in effect at the date on of incurrence of such Other Incremental Term Loans, and, except as to pricing, amortization, final maturity date and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), the Other Incremental Term Loans shall have terms, to the extent not consistent with the Initial Term A Loans, that are not more favorable, taken as a whole, to the lenders providing such Incremental Term Loans than the terms of the Initial Term A Loans and (wii) all fees required for purposes of prepayments, Other Incremental Term Loans shall be treated substantially the same as (and in any event no more favorably than) the Initial Term A Loans,
(vi) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be paid no shorter than the remaining Weighted Average Life to Maturity of the then outstanding Term Loans with the longest remaining Weighted Average Life to Maturity,
(vii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in connection therewith respect of any Incremental Term Loan Commitments or Incremental Revolving Credit Commitments,
(viii) 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, and
(ix) the interest rate margins and (subject to clause (v) above) 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 under any Incremental Term Loan Commitment is higher than the All-in Yield for the outstanding Initial Term A Loans hereunder immediately prior to the incurrence of the applicable Incremental Term Loans by more than (x) if such incurrence occurs during the Post-Closing Period, 0 basis points or (y) thereafter, 50 basis points, then the effective interest rate margin for the Initial Term A Loans at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement Term Loans are incurred shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all the All-in Yield for the Initial Term A Loans is equal to the All-in Yield for such Incremental Term Loans minus (x) if such incurrence occurs during the Post-Closing Period, 0 basis points or (y) thereafter, 50 basis points. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement or Incremental Term Loan Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.17 and any such Collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto; provided, that, notwithstanding anything to the contrary in this Section 2.17, during the Post-Closing Period, to the extent such terms and documentation are not consistent with the Initial Term A Facility or the Initial Revolving Facility, as the case may be (except to the extent permitted by clauses (v) and (ix)), such terms (if favorable to the Lenders under hereunder immediately prior to such incurrence) shall be, in consultation with the relevant Tranche or Tranches participate Administrative Agent, incorporated into the Loan Documents for the benefit of all Lenders hereunder immediately prior to such incurrence without further amendment requirements. 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 borrowing applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Loans under in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the relevant Tranche or Tranches applicable Class of outstanding Revolving Loans on a pro rata on basis. Notwithstanding anything to the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to contrary, this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay 2.17 shall supersede any provisions in Section 2.15 or Section 9.02 to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretocontrary.
Appears in 1 contract
Sources: Credit Agreement (Roku, Inc)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that The Borrower may on one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments andoccasions, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered written notice to the Administrative Agent an Agent, establish any Incremental Commitment Agreement in respect thereof as Commitments, provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) that the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, be established hereunder on any date shall not exceed during the Maximum term of this Agreement the sum of (x) $750,000,000 and (y) the aggregate amount of Commitments terminated under Section 2.18(b). Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which date shall not be less than five Business Days (or such shorter period as may be agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent), (ii) the amount of the Incremental Commitments requested to be established and (iii) the identity of each Person proposed to become an Incremental Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Incremental Commitment Amount may elect or decline, in its sole discretion, to provide such Incremental Commitment and (vy) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant any Person that the Borrower proposes to be an Incremental Commitment shall Lender, if such Person is not then a Lender, must, if such approval would then be entitled required under Section 9.04 for an assignment to such Person of a Commitment, be approved by the benefits of Administrative Agent, each Issuing Bank and the guarantees and security provided under the Credit Documents Swingline Lender (each such approval not to the other ABL Obligations on a pari passu basisbe unreasonably withheld, delayed or conditioned).
(b) At 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 Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with the Revolving Commitments and Revolving Loans; provided that the Borrower at its election may pay upfront or closing fees with respect to Incremental Commitments without paying such fees with respect to the other Revolving Commitments.
(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 Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) at the time of the provision effectiveness of such Incremental Commitments pursuant and after giving effect thereto (A) no Default shall have occurred and be continuing or would result therefrom and (B) the representations and warranties of the Borrower set forth in Article III are true and correct 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 to the effect that such representation and warranty is true and correct in all material respects on and as of such prior date, and (ii) the Borrower shall have delivered to the Administrative Agent (A) a certificate of a Responsible Officer of the Borrower confirming the satisfaction of the conditions set forth in clauses (i)(A) and (i)(B) above and (B) such legal opinions, board resolutions, secretary’s certificates and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered on the Effective Date under Section 4.01) 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 Section 1.15Agreement and the other Loan Documents as may be necessary or appropriate, each ABL Borrower, in the reasonable opinion of the Administrative Agent and each such Lender the Borrower, to give effect to the provisions of this Section. The Administrative Agent agrees that its consent to any amendment to this Agreement or any other Eligible Transferee which agrees Loan Document as contemplated above, or to provide the form and substance of any Incremental Facility Agreement, will not be unreasonably withheld, delayed or conditioned.
(d) Upon the effectiveness of an Incremental Commitment (each, an “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, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (iii) the Aggregate Revolving 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 “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Lender holding such Incremental Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) shall execute and deliver immediately prior to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Revolving Commitment prior to occur on the date set forth in effectiveness of such Incremental Commitment Agreement, which date in any event Commitments shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing pay to the Administrative Agent in same day funds an amount (or any affiliate thereof)so long as such amount is greater than zero) equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Administrative Agent in same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds (so long as such portion is greater than zero) that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Incremental Commitments, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (and the Borrower shall deliver such Borrowing Request), (xvi) all each Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Commitment Requirements are satisfied, (yCommitments) all other conditions set forth in this Section 1.15 shall have been satisfied, and (zvii) the Borrower shall pay each Lender any and all other conditions precedent that may accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be set forth in subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of such Incremental Commitment Agreement shall have been satisfied. Commitments occurs other than on the last day of the Interest Period relating thereto.
(f) The Administrative Agent shall notify the Lenders promptly notify each Lender as upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.20(a) and of the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such any Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to advising the extent necessary so that all Lenders of the details thereof and of the Applicable Percentages of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect thereto and of the assignments required to any increase in the Total Revolving Loan Commitment be made pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto2.20(e).
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Weyerhaeuser Co)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred The Borrower may on one or more occasions, by written notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as (which shall promptly deliver a copy thereof to each Lender), request the establishment of Incremental Commitments, provided that the aggregate amount of all the Incremental Commitments established after the Restatement Effective Date under this Section 2.20 shall not exceed $20,000,000 (it being understood, for the avoidance of doubt, that the additional Commitments established on the Restatement Effective Date are not Incremental Commitments and the Second Restatement Agreement is not an Incremental Facility Agreement). 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 15 days after the date on which such notice is delivered to the Administrative Agent, and (ii) the amount of the matters set forth below in this Section 1.15Incremental Commitments being requested, but without requiring and shall offer to each Non-Defaulting Lender the consent of any 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 request at any time the Borrower and from time to time the Administrative Agent given not more than seven days after the Initial Borrowing Date 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 prior 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 Revolving Loan Maturity Datepreceding sentence to provide Incremental Commitments in an aggregate amount less than the amount of the Incremental Commitments being requested, that the Borrower may arrange for one or more Lenders (and/or one banks or more other Persons financial institutions, which are Eligible Transferees and which will become Lenders as provided below) may include any Lender, to provide Incremental Commitments constituting Revolving Loan Commitments and, subject in an aggregate amount equal to the applicable amount of such deficiency; provided that any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and each Issuing Bank.
(b) The terms and conditions contained in this Agreement, make Revolving of any Incremental Commitment and Loans and participate in Letters other extensions of Credit pursuant theretocredit to be made thereunder shall be identical to those of the Commitments and Loans and other extensions of credit made hereunder, it being understood and agreed, however, that in connection with the effectiveness of any Incremental Commitment, subject to the consent of the Borrower, this Agreement may be modified to increase (but not decrease) the Applicable Rate and fees payable for the account of the Lenders pursuant to Section 2.11, so long as such increase is effective for the benefit of all the Lenders hereunder on equal terms.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Lender Default or Event of Default shall have occurred and be obligated continuing on the date of effectiveness thereof, both immediately prior to provide an and immediately after giving effect to such Incremental Commitment as a result Commitments and the making of any Loans and issuance of Letters of Credit thereunder to be made on such request by date, (ii) the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and Borrower shall have delivered to the Administrative Agent an a certificate of the chief executive officer or the chief financial officer of the Borrower, dated as of the date of effectiveness thereof, certifying that the representations and warranties of each Loan Party set forth in the Loan Documents are true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall have been so true and correct on and as of such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitment Agreement in respect thereof as provided in clause (b) of Commitments and the related transactions under this Section 1.152.20 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 Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such transaction. Each Incremental Commitment provided pursuant to this Section 1.15Facility Agreement may, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment 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 Administrative Agent, to give effect to the provisions of this Section (including any increase referred to in paragraph (b) above).
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (iiii) each provision of such Incremental Commitments on Lender, if not already a given date pursuant to this Section 1.15 Lender, shall be in deemed to be a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a “Lender)) of at least $10,000,000 ” hereunder, and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment 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 guarantees term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Lender holding such Commitment, and security provided under the Credit Documents Applicable Percentage of all the Lenders, shall automatically be adjusted to the other ABL Obligations on a pari passu basisgive effect thereto.
(be) At On the time date of the provision effectiveness of any Incremental Commitments pursuant to this Section 1.15Commitments, each ABL BorrowerLender shall assign to each Incremental Lender holding such Incremental Commitment, the Administrative Agent and each such Incremental Lender or other Eligible Transferee which agrees shall purchase from each Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and participations in Letters of Credit and Protective Advances outstanding on such date as shall be necessary in order that, after giving effect to provide an all such assignments and purchases, such Loans and participations in Letters of Credit and Protective Advances will be held by all the Lenders (including such Incremental Commitment (each, an “Incremental Lender”Lenders) shall execute and deliver ratably in accordance with their Applicable Percentages after giving effect to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfiedCommitment. The Administrative Agent shall notify the Lenders promptly notify each Lender as to of the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such any Incremental Commitments; provided that , advising the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments Lenders of the affected details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and (iii) of the assignments required to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments made pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoparagraph.
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at At any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity DateJanuary 7, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and2011 Borrowers may, subject to the applicable rights of the Lenders and Agent in their sole and absolute discretion to deny such requests as set forth in this Section 1.16, from time to time, upon written notice to the Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Commitments by an aggregate amount not to exceed Ten Million Dollars ($10,000,000) (the “Incremental Revolver”), such that the Aggregate Revolving Loan Commitments after giving effect to such increase are no greater than Thirty-Five Million Dollars ($35,000,000). Each Lender shall have the right for a period of fifteen (15) days following receipt of such notice, to elect by written notice to the Borrower Representative and the Agent, to commit to establish all or a portion of such Incremental Revolver. Final allocations of the Incremental Revolver shall be determined by the Agent after consultation with Borrowers. No Lender (or any successor thereto) shall have any obligation to establish all or any portion of such Incremental Revolver or to increase any other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to establish all or any portion of such Incremental Revolver shall be made in its sole discretion independently from any other Lender.
(b) If the Lenders do not commit to establish all or any portion of the Incremental Revolver pursuant to subsection (a) of this Section 1.16, the Agent may in its sole and absolute discretion (i) designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) (an “Additional Lender”) or (ii) deny all or any portion of the requested Incremental Revolver amount.
(c) In the event that the Borrowers desire to increase the Commitments by the Incremental Revolver and the Lenders and Agent approve such request in their sole and absolute discretion as set forth in Section 1.16(a) and (b), the Borrowers will enter into an amendment with the Agent, those Lenders providing the Incremental Revolver and Additional Lenders, if any (which shall upon execution thereof become Lenders hereunder if not theretofore Lenders) to provide for such Incremental Revolver, which amendment shall set forth any terms and conditions of the Incremental Revolver not covered by this Agreement as agreed by the Borrowers, Agent and such Lenders, and shall provide for the issuance of promissory notes to evidence the Incremental Revolver if requested by such Lenders (which notes shall constitute Notes for purposes of this Agreement), such amendment to be in form and substance reasonably acceptable to Agent and consistent with the terms of this Section 1.16(c) and of the other provisions of this Agreement. No consent of any Lender not committing to the Incremental Revolver is required to permit the Incremental Revolver contemplated by and otherwise complying with this Section 1.16(c) or the aforesaid amendment to effectuate the Incremental Revolver. This clause (c) shall supersede any provisions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing Section 9.1.
(d) The increase of the Commitments by the Incremental Revolver will be subject to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other satisfaction of the following conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, precedent: (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented after giving pro forma effect to such increase, no Default or Event of Default shall have occurred and be continuing and Borrowers will be in pro forma compliance with the covenants set forth in Article VI, (ii) Schedule I shall be deemed modified to reflect the revised Commitments execution of the affected amendment hereto referenced in clause (c) above by Agent, the Lenders and Additional Lenders providing the Incremental Revolver and the Credit Parties, (iii) delivery to Agent of a certificate of the Secretary or an Assistant Secretary of each Credit Party, in form and substance reasonably satisfactory to Agent, certifying the resolutions of such Person’s board of directors (or equivalent governing body) approving and authorizing the Incremental Revolver (if not previously delivered to Agent), and certifying that none of the organizational documents of such Credit Party delivered to the extent requested by Agent prior thereto have been modified or altered in any Incremental Lenderway (or if modifications have occurred, Notes will be issued, at the expense certifying new copies of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lendersorganizational documents), (even though iv) delivery to Agent of an opinion of counsel to the Credit Parties in form and substance and from counsel reasonably satisfactory to the Agent, addressed to Agent and Lenders extending the Incremental Revolver and covering such matters as a result thereof the Agent may reasonably request, (v) receipt by Agent of such new Loans Notes and reaffirmations of guaranties and Liens, as Agent may reasonably request, together with amendments to any Mortgages reflecting that the Incremental Revolver is secured pari passu with the Revolving Loan, and such endorsements to title policies or additional title searches as the Agent may reasonably request and (to vi) the extent required to Incremental Revolver shall be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata provided on the basis of their respective Commitments under same terms and conditions as the relevant Tranche or Tranches (after giving effect to any increase in the Total existing Revolving Loan Commitment pursuant Commitments (including without limitation as to this Section 1.15) fees, absence of original issue discount, interest rates and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretomaturity).
Appears in 1 contract
Sources: Credit Agreement (Akorn Inc)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred The Borrower may on one or more occasions, by written notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15Agent, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision establishment of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereofCommitments; provided that the aggregate, (iv) the aggregate cumulative amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.152.20 shall not exceed $150,000,000. 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 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (B) the amount of the Incremental Commitments being requested and (C) the identity of each ABL BorrowerLender or other Person that the Borrower proposes become an Incremental Revolving Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment for each such Lender or other Person (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any such Person that is not a Lender must be an Eligible Assignee that is reasonably acceptable to the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Issuing Bank).
(b) The terms and conditions of any Incremental Commitment and Revolving Loans and other extensions of credit to be made thereunder (eachother than terms with respect to pricing, an “maturity and fees, to the extent set forth in the applicable Incremental Lender”Facility Agreement) shall execute be identical to the terms and deliver conditions of the Commitments and Revolving Loans and other extensions of credit made thereunder; provided that (i) no Incremental Commitment or Revolving Loan made thereunder shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction (other than on a pro rata basis in accordance with Section 2.08(c) of this Agreement) prior to, the Maturity Date, (ii) if the Weighted Average Yield applicable to any Incremental Commitment and the Revolving Loans made thereunder exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date of such calculation, then the Applicable Rate then in effect for Revolving Loans hereunder shall automatically be increased so that the Weighted Average Yield applicable to such Incremental Commitment and the Revolving Loans made thereunder is not more than 0.50% higher than that applicable to the Commitments and the Revolving Loans and other extensions of credit hereunder and (iii) notwithstanding anything to the contrary in this Section 2.20 or any Incremental Facility Agreement, unless it otherwise agrees, no Issuing Bank shall be required to issue Letters of Credit hereunder expiring after the termination date applicable to such Issuing Bank’s Commitment. For the avoidance of doubt, if the Weighted Average Yield applicable to any Incremental Commitment and the Revolving Loans made thereunder is less than the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date of such calculation, then the Applicable Rate then in effect for the Revolving Loans hereunder shall not be decreased as a result thereof.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Revolving Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Revolving Loans and other extensions of credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) Holdings and the Borrower shall be in compliance, on a pro forma basis after giving effect to and the making of Revolving Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, with the covenants set forth in Sections 6.11 and 6.12 as of the end of the fiscal quarter of Holdings for which consolidated financial statements have theretofore been most recently delivered pursuant to Section 5.01(a) or 5.01(b), (iv) the Borrower shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section 2.20 and (v) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Administrative Agent, to give effect to the provisions of this Section 2.20.
(d) Upon effectiveness of an Incremental Commitment Agreementof any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a “Lender” and a “Revolving Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders and Revolving Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders and Revolving Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Commitment, shall increase) the Commitment of such Incremental Revolving Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentages of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of the effectiveness of any Incremental Commitments, each Revolving Lender shall be deemed to have assigned to each Incremental Revolving Lender holding such Incremental Commitments, and each such Incremental Revolving Lender shall be deemed to have purchased from each Revolving Lender, at the principal amount thereof (together with accrued interest), 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 Lender’s Incremental Commitment Commitments. Any Revolving Loans outstanding immediately prior to occur on the date set forth in of the effectiveness of such Incremental Commitment AgreementCommitments that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, which date in any event shall be no earlier than and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such Loans immediately prior to the date on which (w) all fees required to be paid in connection therewith at of the time effectiveness of such effectiveness shall have been paid Incremental Commitments, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which time it will be repaid or refinanced with new Revolving Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Revolving Lenders (including, without limitation, any agreed upon up-front or arrangement fees owing to including the Administrative Agent (or any affiliate thereof)), (xIncremental Revolving Lenders) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as after giving effect to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided provided, however, that upon the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time occurrence of any provision Event of Default, each Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay Revolving Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Loans of certain of the other Revolving Lenders under the relevant Tranche or Tranchesso that, and incur additional after giving effect thereto, all Revolving Loans from certain other that are Eurocurrency Loans are held by the Revolving Lenders under the relevant Tranche or Tranches (including the Incremental Revolving Lenders)) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. If there are any ABR Loans outstanding on the date of the effectiveness of such Incremental Commitments, such Loans shall either be prepaid on such date or refinanced on such date (subject to the satisfaction of applicable borrowing conditions) with Revolving Loans made on such date by the Revolving Lenders (including the Incremental Revolving Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (even though as a result thereof such new i) each Incremental Revolving Lender will make ABR Loans (by transferring funds to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), Administrative Agent in each case an amount equal to the extent necessary so that all aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the Lenders under amount of such Incremental Revolving Lender’s Incremental Commitment by the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches Aggregate Commitment (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15effectiveness of the Incremental Commitments on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR Loans held by the Revolving Lenders other than the Incremental Revolving Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Incremental Revolving Lenders, in such amounts so that, after giving effect thereto, all ABR Loans will be held by the Revolving Lenders in accordance with their then-current Applicable Percentages. On the relevant ABL Borrowers under date of the relevant Tranche being jointly and severally obligated to effectiveness of such Incremental Commitments, the Borrower will pay to the respective Lenders any costs Administrative Agent, for the accounts of the type Revolving Lenders receiving such prepayments, accrued and unpaid interest on the principal amounts of their Revolving Loans being prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) The Administrative Agent shall notify Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 1.11 2.20(a) and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Periodeffectiveness of any Incremental Commitments, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender each case advising the Lenders of the details thereof and of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments deemed to have been made pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoSection 2.20(e).
Appears in 1 contract
Sources: Credit Agreement (Fairchild Semiconductor International Inc)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to belowrequest, the ABL Borrowers shall have the rightBorrower may, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15Agent, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Amendment Effective Date and prior to the Revolving Loan Maturity Datedate the Total Commitments have been terminated, that one or more the Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, ; it being understood and agreed, however, that that:
(i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL BorrowersBorrower, and until such time, if any, as such Lender has agreed in its sole discretion (such discretion to be exercised reasonably) to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15Clause 2.3(b), such Lender shall not be obligated to fund its participation in any Revolving Loans Loan in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, Clause 2.3(b) below;
(ii) any no Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any all other Lender, Lenders;
(iii) each provision of an Incremental Commitments Commitment on a given date pursuant to this Section 1.15 Clause 2.3(b) below shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)Lenders) of at least $10,000,000 25,000,000 and in integral multiples of $1,000,000 25,000,000 in excess thereof, ;
(iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15Clause 2.3(b) below, shall not exceed the Maximum Incremental Commitment Amount and $200,000,000; and
(v) all Revolving Loans made pursuant to Incremental Commitments (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment ) shall be entitled to the benefits of the guarantees obligations under this Agreement and security provided under the Credit Documents to the other ABL Obligations on a pari passu basisapplicable Finance Documents.
(b) At the time of the provision of an Incremental Commitments Commitment pursuant to this Section 1.15Clause 2.3, each ABL the Borrower, the Administrative Guarantors, the Lenders and the Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date (the “Incremental Commitment Date”) set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate Affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 Clause 2.3(b) shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment Commitments under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, and (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower’s expense, to such Incremental Lender in conformity with the requirements of Section 1.05Lender.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Commitments. (ai) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred The Borrower may by written notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as (whereupon the Administrative Agent shall promptly deliver a copy to all of the matters set forth below in this Section 1.15, but without requiring the consent of any each of the Lenders) request, to request at any time and from time to time after the Initial Borrowing Closing Date and prior to (a) the Revolving Loan Maturity Date, that extension of one or more Lenders (and/or new term loan commitments or one or more other Persons which are Eligible Transferees increases in any existing incremental term loan commitments (any such new or increased incremental term loan commitments, an “Incremental Term Commitment”) and which will become Lenders as (b) the extension of one or more new Revolving Credit Commitments or one or more increases in the existing Revolving Credit Commitments (any such new or increased Revolving Credit Commitment, an “Incremental Revolving Commitment”), in an aggregate amount (with respect to both Incremental Term Commitments and Incremental Revolving Commitments) not to exceed $150,000,000 (provided below) provide that any amount of Incremental Commitments constituting Revolving Loan Commitments and, subject extended pursuant to the applicable terms and conditions contained in of this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender Agreement shall reduce the total aggregate principal amount for all Incremental Equivalent Debt permitted to be incurred hereunder on a dollar-for-dollar basis). Each Incremental Commitment shall be obligated to provide in an Incremental Commitment aggregate amount not less than $5,000,000 and integral multiples thereof (or such lesser amount and/or multiples as a result of any such request may be agreed by the ABL BorrowersBorrower and the Administrative Agent). Each notice delivered pursuant to this Section 3A.1 shall specify (I) the date (the “Increase Effective Date”) on which the Borrower proposes that the proposed Incremental Commitments shall be effective, and until which shall be a date not less than 10 Business Days after the date in which such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and notice is delivered to the Administrative Agent an (unless otherwise consented to by the Administrative Agent in its discretion), (II) the total of the Incremental Commitment Agreement Commitments requested by the Borrower and (III) the identity of the banks, financial institutions and other entities to whom the Borrower proposes that any portion of such Incremental Commitments be allocated and the amounts of such allocations, which banks, financial institutions or other entities may or may not be existing Lenders, but who shall be Eligible Assignees. Any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in respect thereof as provided in clause (b) of this Section 1.15its sole discretion, to provide such Incremental Commitment. Any proposed new Lender shall not be obligated enter into a joinder or other agreement in form and substance reasonably satisfactory to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each its counsel (such Lender or other additional Eligible Transferee which agrees to provide Assignees becoming Lenders and any existing Lenders providing an Incremental Commitment (eachCommitment, an collectively, the “Incremental LenderLenders”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Sources: Credit Agreement (Vertex, Inc.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred The Borrower may, by written notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after time, request an increase in the Initial Borrowing Date and prior aggregate amount of the Commitments (each such increase, an “Incremental Commitment”), as applicable, in an aggregate amount not to the Revolving Loan Maturity Dateexceed $155,000,000, that from one or more Incremental Lenders, all of which must be permitted to become assignees of Commitments or Loans under Section 9.04. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or such lesser amount equal to the remaining unused amount) and (ii) the date on which such Incremental Commitments are requested to become effective.
(b) The Borrower may seek Incremental Commitments from existing Lenders (and/or one each of which shall be entitled to agree or more other Persons which are Eligible Transferees and which will become Lenders as provided belowdecline to participate in its sole discretion) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms prior written consent of the Administrative Agent (such consent not to be unreasonably delayed or withheld), additional banks, financial institutions and conditions contained other institutional lenders who will become Incremental Lenders in this Agreementconnection therewith, make Revolving Loans and participate in Letters of Credit pursuant theretoeach case, it being understood and agreed, however, that (i) no Lender shall be obligated solely to provide an Incremental Commitment as a result of any the extent such request by the ABL Borrowers, and until such timeconsent, if any, would be required under Section 9.04 for an assignment of Loans or Commitments, as such Lender has agreed in its sole discretion applicable, to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15additional banks, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees financial institutions and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent institutional lenders. The Borrower and each such Incremental Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of Assumption Agreement and such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to other documentation as the Administrative Agent (or any affiliate thereof)), (x) all shall reasonably specify to evidence the Incremental Commitment Requirements are satisfied, (y) all other conditions set forth of such Person. The terms and provisions of the Incremental Commitments shall be identical to those of the Commitments. The Incremental Commitments shall rank pari passu in this Section 1.15 shall have been satisfied, right of payment and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfiedsecurity with the Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Assumption Agreement. Each of the parties hereto hereby agrees that, and at such time, (i) upon the Total Revolving Loan Commitment under, and for all purposes ofeffectiveness of any Incremental Assumption Agreement, this Agreement shall be increased by deemed amended to the aggregate amount extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.18 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied, a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) except as otherwise specified in the applicable Incremental Commitments; provided that Assumption Agreement, the Administrative Agent shall have consented to such increasereceived legal opinions, (ii) Schedule I shall be deemed modified to reflect board resolutions and other closing certificates reasonably requested by the revised Commitments of Administrative Agent and consistent with those delivered on the affected Lenders Closing Date under Section 4.01 and (iii) all fees and expenses owing in respect of such Incremental Commitment to the Administrative Agent and the Lenders shall have been paid in full.
(d) On the date of effectiveness of any Incremental Commitments, the Borrower shall (A) prepay the outstanding Loans (if any) in full, (B) simultaneously borrow new Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Borrowings, with Adjusted LIBO Rates equal to the outstanding Adjusted LIBO Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent requested by that any Incremental Lender, Notes portion of the amount prepaid to such Lender will be issued, at subsequently borrowed from such Lender and (y) the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15existing Lenders, the ABL Borrowers shallIncremental Lenders and the existing Lenders shall make and receive payments among themselves, in coordination with a manner acceptable to the Administrative Agent, repay outstanding Revolving so that, after giving effect thereto, the Loans of certain of are held ratably by the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of in accordance with the respective Commitments of such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15such Incremental Commitments) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to (C) pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, if any, payable under Section 2.13 as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning a result of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoprepayment.
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred The Company may on one or more occasions, by written notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15Agent, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters establishment of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the aggregate, cumulative amount of all Incremental Commitments established pursuant to this Section 2.21 after the Effective Date shall not exceed $50,000,000. Each such notice shall specify (i) the date on which the Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (B) the amount of the Incremental Commitments being requested, (C) the identity of each Lender or other Person that the Company proposes become an Incremental Revolving 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 shall have consented and each Issuing Bank).
(b) The terms and conditions of any Incremental Commitment and Revolving Loans and other extensions of credit to such increase, (ii) Schedule I be made thereunder shall be deemed modified identical to reflect the revised Commitments terms and conditions of the affected Lenders Commitments and (iii) Revolving Loans and other extensions of credit made thereunder; provided that if the interest rate spread applicable to the extent requested by Revolving Loans to be made under any Incremental LenderCommitments (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, Notes will 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 issuedincreased, at effective on the expense date of each applicable ABL Borrowerthe effectiveness of such Incremental Commitments, to such equal the interest rate spread or interest rate floor, or both, as the case may be, applicable to Revolving Loans under the Incremental Lender in conformity with the requirements of Section 1.05Commitments.
(c) At The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the time Company, each applicable Borrower, each Incremental Revolving Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Revolving Loans and other extensions of credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, except in the case of any provision such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to and the making of Revolving Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Company shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 on a pro forma basis in accordance with Section 1.04(b), (iv) the Company shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments pursuant 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 Section 1.15, Agreement and the ABL Borrowers shallother Loan Documents as may be necessary or appropriate, in coordination with the reasonable judgment of the Administrative Agent, repay to give effect to the provisions of this Section 2.21.
(d) Upon effectiveness of an Incremental Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a "Lender" and a "Revolving Lender" hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders and Revolving Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders and Revolving Lenders hereunder and under the other Loan Documents, and (ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Commitment, shall increase) the Commitment of such Incremental Revolving Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term "Commitment". For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentages of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of the effectiveness of any Incremental Commitments, each Revolving Lender shall be deemed to have assigned to each Incremental Revolving Lender holding such Incremental Commitments, and each such Incremental Revolving Lender shall be deemed to have purchased from each Revolving Lender, in an amount equal to the principal amount thereof (together with accrued and unpaid interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their 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 certain of the other Revolving Lenders under the relevant Tranche or Tranchesso that, and incur additional after giving effect thereto, all Revolving Loans from certain other that are Eurocurrency Loans are held by the Revolving Lenders under the relevant Tranche or Tranches (including the Incremental Revolving Lenders)) in accordance with their then-current Applicable Percentages. Any such assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply thereto. Any ABR Loans outstanding on the date of the effectiveness of such Incremental Commitments shall either be prepaid on such date or refinanced on such date (subject to the satisfaction of applicable borrowing conditions) with Revolving Loans made on such date by the Revolving Lenders (including the Incremental Revolving Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (even though as a result thereof such new i) each Incremental Revolving Lender will make ABR Loans (by transferring funds to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), Administrative Agent in each case an amount equal to the extent necessary so that all aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the Lenders under amount of such Incremental Revolving Lender's Incremental Commitment by the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches Aggregate Commitment (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15effectiveness of the Incremental Commitments on such date) and (ii) such funds will be applied to the prepayment of outstanding ABR Loans held by the Revolving Lenders other than the Incremental Revolving Lenders, and transferred by the Administrative Agent to the Revolving Lenders other than the Incremental Revolving Lenders, in such amounts so that, after giving effect thereto, all ABR Loans will be held by the Revolving Lenders in accordance with their then-current Applicable Percentages. On the relevant ABL Borrowers under date of the relevant Tranche being jointly and severally obligated to effectiveness of such Incremental Commitments, each Borrower will pay to the respective Lenders any costs Administrative Agent, for the accounts of the type 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 1.11 2.21 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Periodeffectiveness of any Incremental Commitments, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender each case advising the Lenders of the details thereof and of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments deemed to have been made pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoSection 2.21(e).
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request The Borrower may at any time and or from time to time after the Initial Borrowing Date and prior Effective Date, by notice to the Revolving Loan Maturity DateAdministrative Agent, that request one or more Lenders increases in the amount of the Commitments (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as each such increase, a “Commitment Increase”); provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result both at the time of any such request by and upon the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion effectiveness of any Incremental Amendment referred to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15below, (iix) any Lender no Default shall exist and (including any Eligible Transferee who will become a Lendery) may so provide an Incremental Commitment without the consent of all representations and warranties in this Agreement or any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 Loan Document shall be true and correct in a minimum aggregate amount all material respects and (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (ivii) the aggregate amount of all Incremental Commitments provided Commitment Increases pursuant to this Section 1.152.20, shall not exceed the Maximum Incremental $100,000,000. Each Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment Increase shall be entitled to the benefits of the guarantees and security 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 Credit Documents to limit set forth in the other ABL Obligations on a pari passu basis.
(b) At next sentence). Each notice from the time of the provision of Incremental Commitments Borrower pursuant to this Section 1.15, each ABL Borrower, 2.20 shall set forth the Administrative Agent requested amount and each such proposed terms of the relevant Commitment Increase. Commitment Increases may be provided by any existing Lender or by any other Eligible Transferee which agrees to provide an Incremental Commitment bank or other financial institution (each, any such other bank or other financial institution being called an “Incremental Additional Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such increaseLender’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 (iior in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) Schedule I under this Agreement pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement, executed by the Parent, the Borrower, each Lender agreeing to provide such Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent. Each Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20. The effectiveness of any 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 modified to reflect refer to the revised Commitments effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the affected Lenders and (iii) 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 extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.152.20, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain (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 Lenders under the relevant Tranche or TranchesCommitment Increase (each, a “Commitment Increase Lender”) in respect of such increase, and incur additional Revolving 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 from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders)such that, (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender (including each such Commitment Increase Lender) will equal the percentage of the aggregate Commitments of all Lenders represented by such Lender’s Commitment and (b) if, on the date of 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 Commitments), which prepayment shall be accompanied by accrued interest on the Total Revolving Loan Commitment pursuant to this Section 1.15) Loans being prepaid and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations incurred by any Lender in accordance with Section 2.15. 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 shall, absent manifest error, be final and conclusive and binding on all parties heretosentence.
(b) This Section 2.20 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Lorillard, Inc.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and The Borrower may from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered written notice to the Administrative Agent an elect to request incremental revolving credit commitments (the “Incremental Commitment Agreement in respect thereof as Revolving Credit Commitments”) for the purpose of increasing the aggregate Revolving Credit Commitments; provided in clause that (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv1) the aggregate amount of all Incremental Revolving Credit Commitments provided shall not (as of any date of incurrence thereof) exceed $100,000,000 and (2) the aggregate amount of each increase in the Revolving Credit Commitments pursuant to this Section 1.15, section shall not exceed be less than $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each such notice shall specify the Maximum date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Revolving Credit Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, a “New Lender”). Any Person offered or approached to provide all or a portion of any Incremental Revolving Credit Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of the related Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Revolving Credit Commitments and (v2) the making of any Loans or the issuance of any Letters of Credit pursuant thereto;
(B) all Revolving Credit Loans made, and all reimbursement obligations in respect of Letters of Credit issued, pursuant to any Incremental Revolving Credit Commitments shall constitute Obligations of the Borrower, shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis and shall otherwise be subject to the same terms and conditions as other Revolving Credit Loans and Letters of Credit, respectively;
(C) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) agree to make all interestpayments and adjustments necessary to effect such reallocation, fees and other amounts payable thereon), made the Borrower shall pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment);
(D) any New Lender with an Incremental Revolving Credit Commitment shall be entitled to the benefits of same voting rights as the guarantees and security provided existing Revolving Credit Lenders under the Revolving Credit Documents to Facility, and any Extensions of Credit made in connection with each Incremental Revolving Credit Commitment shall receive proceeds of prepayments on the same basis as the other ABL Obligations on a pari passu basis.Extensions of Credit made hereunder;
(bE) At the time of the provision of Incremental Revolving Credit Commitments shall be effected pursuant to this Section 1.15, one or more joinder agreements (each ABL a “Joinder Agreement”) executed and delivered by the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee the applicable New Lenders (which agrees to provide an Incremental Commitment (each, an “Incremental Lender”Joinder Agreement(s) shall execute be in form and deliver substance reasonably satisfactory to the parties thereto and 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 5.14);
(F) the Administrative Agent and the Lenders shall have received from the Borrower a certificate of the chief financial officer or treasurer of the Borrower demonstrating, in form and substance reasonably satisfactory to the Administrative Agent an Incremental Commitment AgreementAgent, that the Borrower is in compliance with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date financial covenants set forth in such Article X (based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable) both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Revolving Credit Commitment Agreement, which date in and (y) the making of any event shall be no earlier than the date on which Revolving Credit Loans pursuant thereto (w) all fees required with any Incremental Revolving Credit Commitment being deemed to be paid in connection therewith at fully funded); and
(G) the time of such effectiveness Borrower shall have been paid deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, any agreed upon up-front a resolution duly adopted by the board of directors (or arrangement fees owing equivalent governing body) of each Credit Party authorizing the borrowing of Revolving Credit Loans and the request of Letters of Credit pursuant to Incremental Revolving Credit Commitments) reasonably requested by the Administrative Agent in connection with any such transaction.
(or any affiliate thereof)), (xb) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement New Lenders shall be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments included in any determination of the affected Required Lenders and (iii) to the extent requested by New Lenders will not constitute a separate voting class or separate tranche of Loans for any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05purposes under this Agreement.
(c) At On any Increased Amount Date on which any Incremental Revolving Credit Commitment becomes effective, subject to the time foregoing terms and conditions, each New Lender with an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender hereunder with respect to such Incremental Revolving Credit Commitment.
(d) The parties acknowledge and agree that the $50,000,000 of any provision incremental Revolving Credit Commitments made available to the Borrower pursuant to the Second Amendment constitutes a utilization of the incremental availability contemplated by this Section 5.14 such that, after giving effect to that utilization, the aggregate amount of Incremental Revolving Credit Commitments remaining which may be sought or obtained pursuant to this Section 1.15, 5.14 after the ABL Borrowers shall, in coordination with Second Amendment Effective Date is $50,000,000.
(e) The parties acknowledge and agree that the Administrative Agent, repay outstanding $50,000,000 of Incremental Revolving Loans of certain Credit Commitments made available to the Borrower pursuant to the Third Amendment constitutes a utilization of the Lenders under the relevant Tranche or Tranchesincremental availability contemplated by this Section 5.14 such that, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in that utilization, the Total aggregate amount of Incremental Revolving Loan Commitment Credit Commitments remaining which may be sought or obtained pursuant to this Section 1.15) and with 5.14 after the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoThird Amendment Effective Date is $0.
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior Prior to the Revolving Loan Maturity Commitment Termination Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments andBorrower may, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered written notice to the Administrative Agent Agent, request an increase to the existing Commitments (any such increase, any “Incremental Commitment Agreement in respect thereof as provided in clause (b) of Commitment”); provided, this Section 1.15, such Lender 2.14 shall not be obligated apply to fund any Revolving Loans increase in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided the Commitments pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender2.01(b)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At Any such requested increase shall be a pro rata increase in the time CP Advance Rate Commitments and the LIBO Rate Commitments.
(c) No increase to the existing Commitments shall occur, and no Person may provide an Incremental Commitment, in each case, without the prior written consent of the provision Administrative Agent, which consent shall be in the sole discretion of the Administrative Agent and the Lenders (each approved Person, if any, an “Incremental Lender”).
(d) No Lender or any other Person shall have any obligation to provide any or all of the Incremental Commitments pursuant until such time such Person becomes an Incremental Lender, and any Lender may elect or decline, in its sole discretion, to this Section 1.15, each ABL provide an Incremental Commitment.
(e) Each Incremental Commitment shall become effective as of the date agreed to among Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an the applicable Incremental Commitment Lenders (each, an the “Incremental LenderIncrease Date”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender so long as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement no Termination Event shall be increased by the aggregate amount of exist on such Incremental Increase Date before or after giving effect to such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I the Incremental Commitments shall be deemed modified effected pursuant to reflect one or more joinder agreements, in form and substance satisfactory to the revised Commitments Administrative Agent, and each of which shall be recorded in the affected Lenders Register and shall be subject to the requirements set forth in Section 2.11(c); and (iii) Borrower shall deliver or cause to the extent be delivered any legal opinions or other documents reasonably requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) Agent in connection with any such repayment and/or incurrence. All determinations transaction.
(f) On any Incremental Increase Date, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender having an existing Commitment of a Class of Advances shall assign to each of the Incremental Lenders having a Commitment of such Class of Advances, and each such Incremental Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Class of Advances outstanding on the Incremental Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Class of Advances will be held by such Lenders having existing Commitments of such Class of Advances and Incremental Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Commitments to the Commitments; (ii) each Incremental Commitment shall be deemed for all purposes a Commitment of a Class of Advances and each Advance made thereunder (an “Incremental Advance”) shall be deemed, for all purposes, an Advance of such Class and (iii) each Incremental Lender shall become a Lender with respect to the Incremental Commitment and all matters relating thereto.
(g) The Administrative Agent shall notify the Lenders, promptly upon determination of any Incremental Increase Date, of (i) the Incremental Commitments and the Incremental Lenders, and (ii) in the case of each notice to any Lender having CP Rate Exposure or LIBO Rate Exposure, as the case may be, the respective interests in such Lender’s Advances, in each case subject to the assignments contemplated by this Section 2.14.
(h) The terms and provisions of the Incremental Advances shall be identical to the Advances.
(i) Each agreement pursuant to which any Incremental Commitments and Incremental Advances are effected may, without the preceding sentence shallconsent (subject to Section 9.10) of any the Lenders but with the consent of Borrower, absent manifest erroreffect such amendments to this Agreement and the other Transaction Documents as may be necessary or appropriate, be final and conclusive and binding on all parties heretoin the opinion of the Administrative Agent, to effect the provision of this Section 2.14.
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Sources: Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that The Company may on one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments andoccasions, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered written notice to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) Agent, request the establishment, during the Availability Period, of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments; provided that the aggregate amount of all the Incremental Commitments established hereunder shall not exceed $500,000,000 during the term of this Agreement. Each such notice shall specify (i) 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 shall have consented Agent) after the date on which such notice is delivered to such increasethe Administrative Agent, and (ii) Schedule I shall be deemed modified to reflect the revised Commitments amount of the affected Lenders Incremental Commitments being requested (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 (iiiy) any Person that the Company proposes to the extent requested by any become an Incremental Lender, Notes will if such Person is not then a Lender, must be issuedapproved by the Administrative Agent, each Issuing Lender and each Swingline Lender (such approval not to be unreasonably withheld or delayed)).
(b) The terms and conditions (including the applicable facility fee and interest rate spreads) of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and Loans and other extensions of credit made hereunder, and shall be treated as a single Class with such Commitments and Loans; provided that the Company at its election may pay upfront or closing fees with respect to Incremental Commitments without paying such fees with respect to the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05other Commitments.
(c) At the time of any provision of The Incremental Commitments shall be effected pursuant to this Section 1.15one or more Incremental Facility Agreements executed and delivered by the Company, the ABL Borrowers shall, in coordination with each Incremental Lender providing such Incremental Commitments and the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches ; provided that no Incremental Commitments shall become effective unless (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loansi) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis date of their respective Commitments under the relevant Tranche or Tranches (effectiveness thereof, both immediately prior to and immediately after giving effect to any increase such Incremental Commitments, no Default shall have occurred and be continuing, (ii) on the date of effectiveness thereof and after giving effect to the making of Loans and issuance of Letters of Credit thereunder to be made on such date, the representations and warranties of each Loan Party set forth in the Total Revolving Loan Commitment Documents that are qualified by materiality shall be true and correct and the representations and warranties that are not so qualified shall be true and correct in all material respects on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties that are qualified by materiality shall be true and correct and such representations and warranties that are not so qualified shall be true and correct in all material respects, in each case, as of such earlier date), (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section 1.15Section, (iv) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay Company shall have delivered to the respective Lenders any costs of the type referred to in Section 1.11 Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and such amounts, other documents as shall reasonably determined be requested by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) Administrative Agent in connection with any such repayment and/or incurrencetransaction and (v) each Subsidiary Guarantor (if any) shall have reaffirmed its Guarantee of the Obligations. All determinations 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 Administrative Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender not already a Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and (ii) (A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Total Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Credit Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Lender that shall not have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds that is equal to the difference, if positive, between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Incremental Commitments, the Borrowers shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount for each Borrower equal to the aggregate amount of its Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (and the Company shall deliver such Borrowing Request), (vi) each Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Commitments) and (vii) each Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrowers pursuant to the preceding sentence shallprovisions of Section 2.16 if the date of the effectiveness of such Incremental Commitments occurs other than on the last day of the Interest Period relating thereto.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.05(a) and of the effectiveness of any Incremental Commitments, absent manifest errorin each case, advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the payments required to be final and conclusive and binding on all parties heretomade pursuant to Section 2.05(e).
Appears in 1 contract
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred The Borrower may, by written notice to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders when: (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (iw) no Lender 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 obligated to provide an Incremental Commitment as a result of any such request by true and correct in all material respects immediately at the ABL Borrowerstime of, and until after giving effect to, such timeIncremental Term Borrowing, if any, as such Lender (y) an updated Library Value Report has agreed in its sole discretion to provide an Incremental Commitment and executed and been delivered to the Administrative Agent an at the time of such Incremental Commitment Agreement in respect thereof as provided in clause Term Borrowing and (bz) of this Section 1.15at the time of, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to or after giving effect to such Incremental Commitment provided pursuant 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 this Section 1.15exceed the Incremental Term Loan Amount from one or more Incremental Term Loan Lenders, each of which must be (i) an existing Lender, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent Affiliate or Approved Fund of any other Lender, existing Lender or (iii) each provision 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 Incremental Term Loan Commitments on a given date pursuant to this Section 1.15 being requested (which shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples increments of $1,000,000 in excess thereofand a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (ivB) the aggregate amount of all date on which such Incremental Term Loan Commitments provided pursuant are requested to this Section 1.15, become effective (which shall not exceed be less than 10 Business Days nor more than 60 days after the Maximum Incremental Commitment Amount date of such notice), and (vC) all Revolving whether such Incremental Term Loan Commitments are commitments to make Term Loans (and all interest, fees and other amounts payable thereon), made pursuant with identical terms to an Incremental Commitment shall be entitled any existing Tranche of Term Loans or commitments to the benefits make term loans with terms different from any existing Tranche of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basisTerm Loans outstanding.
(b) At 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 provision time of, or after giving effect to such Additional Revolving Loan Commitments and any making of Incremental 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 pursuant in an amount not to this Section 1.15exceed the Additional Revolving Loan Commitment Amount from one or more Persons, each ABL Borrowerof 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 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 and Additional Revolving Loans made under such Additional Revolving Credit Commitments, shall be identical to those of the then-existing Revolving Loan Commitments and Revolving Loans, respectively. The final maturity date of 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 shall be required prior to the Revolving Termination Date.
(c) The Borrower and each Incremental Term Loan Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment AgreementTerm Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence each Tranche of Incremental Term Loan Commitments of each Incremental Term Loan Lender. 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, with the effectiveness amortization and maturity, provided that, such Tranche of such Incremental Lender’s Term Loans shall have (i) an Initial Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be 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 on which (w) all fees required to be paid in connection therewith at the time of incurrence of such effectiveness 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 have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing be increased as of such date in accordance with the requirements of the definition of “Applicable Margin”. Notwithstanding anything to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth contrary contained above in this Section 1.15 2.20, the Incremental Term Loan Commitments provided pursuant to each Incremental Term Loan Commitment Assumption Agreement shall have been satisfiedconstitute 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., ▇-▇, ▇-▇, ▇-▇, ▇-▇, 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 (z) all other conditions precedent that may be set forth added to, an existing Tranche of Term Loans, in such Incremental Commitment Agreement shall have been any case so long as the following requirements are satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, :
(i) the Total Revolving Incremental Term Loans to be made pursuant to such Incremental Term Loan Commitment under, and for all purposes of, this Assumption Agreement shall be increased by have the aggregate amount same Scheduled Maturity Date and the same Applicable Margins of such Loans to which the new Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, Term Loans are being added;
(ii) Schedule I 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 deemed modified the same (on a proportionate basis) as is theretofore applicable to reflect the revised Commitments Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining scheduled principal payment of the affected Lenders and respective Tranche proportionately; and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the extent requested by any contrary set forth in Section 2.10, such new Incremental LenderTerm 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), Notes will be issued, at so that each Lender holding Loans under the expense respective Tranche of Term Loans participates in each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements outstanding Borrowing of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Term Loans or Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15incurrence of such new Incremental Term Loans) and with on a pro rata basis.
(iv) To the relevant ABL Borrowers under extent the relevant Tranche being jointly and severally obligated to pay provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the respective 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 any costs of that have made such Incremental Term Loans shall be entitled to receive from the type referred to in Section 1.11 and Borrower such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving new Incremental Term Loans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period, Period based upon rates then applicable thereto) in connection with any such repayment and/or incurrence). 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 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 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 the 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 pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in the aggregate Revolving Loan Commitments pursuant to this Section 2.20 and with the Borrower being obligated to pay to the 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, as reasonably determined by the respective Lenders, to 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
Sources: Credit Agreement (Cinedigm Corp.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers The Borrower shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Restatement Effective Date by written notice to and prior in consultation with the Administrative Agent, to request (i) an increase in the aggregate Commitments (each such requested increase, a “Revolving Loan Maturity DateCommitment Increase”), that and/or (ii) one or more Lenders term loan commitments (and/or each such requested term loan commitment, a “Term Loan Commitment” and, together with any Revolving Commitment Increase, the “Incremental Commitments”) to make one or more other Persons which are Eligible Transferees and which will become term loans (each a “Term Loan”) by having one or more existing Lenders as provided below) provide Incremental increase their respective Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as then in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become and/or provide a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitment (each, an “Incremental 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; provided that (A) any such request for an Incremental Commitment shall execute be in a minimum amount of $25,000,000, (B) immediately after giving effect to any Incremental Commitment, (y) the aggregate Commitments plus Incremental Commitments shall not exceed $400,000,000 and deliver (z) the aggregate of all Incremental Commitments effected shall not exceed $150,000,000, (C) 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 (E) the 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 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 Agreement, with the effectiveness of such to an Incremental Lender, the Administrative Agent or ▇▇▇▇▇ Fargo, as Arranger, 12581222v10 24740.00017 shall be for their own account and shall be in an 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 occur on an Incremental Lender, the date Administrative 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 AgreementEffective Date), which date in any event provided that the Term Loans made pursuant to such Term Loan Commitments (i) shall be no not mature earlier than the date Maturity Date, and (ii) will constitute Obligations of the Borrower on which a pari passu basis with any Revolving Loans
(wc) 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 fees required such other documentation as the Administrative Agent and the Borrower may reasonably require including without limitation the documentation for the amendment referred to be paid in connection therewith at the time of such effectiveness shall have been paid (includingSection 2.21(e)(i)(A), without limitation, any agreed upon up-front or arrangement fees owing 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).
(or any affiliate thereof))d) If Incremental Commitments are provided in accordance with this Section 2.21, the Borrower (xin consultation with the Administrative Agent) all and each Incremental Lender shall agree upon the effective date (the “Incremental Commitment Requirements are satisfied, Effective Date,” which shall be a Business Day not less than thirty (y30) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfieddays prior to the Termination Date). The Administrative Agent shall promptly notify each the Lenders of such increase and the Incremental Commitment Effective Date. For clarity, no Lender as other than an Incremental Lender must execute any joinder or amendment in connection with an Incremental Commitment.
(e) Notwithstanding anything set forth in this Section 2.21 to the effectiveness of each contrary, the Borrower shall not incur any Revolving Loans or Term Loans pursuant to any Incremental Commitment Agreement(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 the Term Loan Commitments, if any, and at the reallocation of Commitments and the allocation of Term Loan Commitments, as applicable, referred to in Section 2.21(f), together with all other documentation required by the Administrative Agent pursuant to Section 2.21(c); 12581222v10 24740.00017
(B) 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 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 timeparty approving or consenting to such Incremental 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 this Agreement and the 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 date), (y) immediately after giving effect to such Incremental Commitment (including any Borrowings in connection therewith and the 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 Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) an opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have reasonably requested.
(f) For Revolving Commitment Increases, on the Incremental Commitment Effective Date, (i) the Total aggregate principal outstanding amount of the Revolving Loan Loans (the “Initial Loans”) immediately prior to giving effect to the Incremental Commitment undershall be deemed to be repaid, (ii) immediately after the effectiveness of the Incremental Commitment, the Borrower shall be deemed to have 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 of the Types and for all purposes ofthe Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.2(b), this Agreement (iii) each Lender shall be increased by pay to the aggregate Administrative Agent in immediately available funds an amount equal to the difference, if positive, 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 Commitments; provided that Commitment) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall have consented pay to each Lender the portion of such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) funds equal to the extent requested by any Incremental difference, if positive, between (y) such Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches ’s pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches percentage (after calculated without giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15Incremental Commitment) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 Initial Loans and (z) such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.Lender’s pro rata percentage 12581222v10 24740.00017
Appears in 1 contract
Incremental Commitments. (a) So long as At any time prior to the Incremental Commitment Request Requirements are satisfied at repayment in full of all Loans and the time termination of the delivery of the request referred to belowall Commitments hereunder, the ABL Borrowers shall have the rightBorrower may, with the consent of, and in coordination with, by written notice to the Administrative Agent as (which the Administrative Agent shall promptly furnish to all of the matters set forth below in this Section 1.15each Lender), but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders Persons (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as may include the then-existing Lenders; provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an such Incremental Commitment as a result of any such request by the ABL Borrowers, Commitments and until such time, if any, as such Lender has agreed may elect or decline in its sole discretion to provide Incremental Commitments) establish Incremental Revolving Credit Commitments or Incremental Term Loan Commitments under this paragraph (a), it being understood that (x) if such Incremental Commitment is to be provided by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Borrower may agree to accept less than the amount of any proposed Incremental Commitment. 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 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 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 executed and delivered to the Administrative Agent an Agent. Each Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15Amendment may, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to (x) effect the provisions of this Section 2.17 or (y) to the extent the terms and conditions of the Incremental Commitments are more favorable to the Lenders than comparable terms existing in the Loan Documents, to bring the terms and conditions of the existing Loans in line with the terms and conditions of the Incremental Loans necessary to achieve fungibility. Notwithstanding the foregoing, no Incremental Revolving Credit Commitments or Incremental Term Loans shall become effective under this Section 2.17 unless on the proposed date of the effectiveness of such Incremental Commitment (i) the Administrative Agent shall have received a certificate dated such date and executed by a Responsible Officer of the Borrower that, subject to the proviso set forth below, the conditions set forth in clauses (a) and (c) of Section 4.02 shall have been satisfied and (ii) the Administrative Agent shall have received documents from the Borrower substantially consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Commitment; provided that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clause (i) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Event of Default or Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (iii2) each provision as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitments 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 given date pursuant Pro Forma Basis) to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including such borrowing and to any Eligible Transferee who will become a Lender)) concurrent transactions and any substantially concurrent use of at least $10,000,000 and in integral multiples of $1,000,000 in excess proceeds thereof, (iv3) the aggregate amount representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of all Incremental Commitments provided the date of effectiveness of the applicable Limited Condition Acquisition Agreement and (4) as of the date of the initial borrowing pursuant to this Section 1.15such Acquisition-Related Incremental Commitment, shall not exceed customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Maximum Incremental Commitment Amount Administrative Agent and (vthe Borrower) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the benefits incurrence of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basissuch Acquisition-Related Incremental Commitment.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Administrative Agent The Loan Parties and each such Incremental Term Loan Lender or other Eligible Transferee which agrees to provide an and/or Incremental Commitment (each, an “Incremental Lender”) Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with Amendment and such other documentation as the effectiveness Administrative Agent shall reasonably specify to evidence the Incremental Commitments of such Incremental Term Loan Lender and/or Incremental Revolving Lender’s . Each Incremental Commitment Amendment shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Credit Commitments; provided that:
(i) any commitments to occur on 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 set forth in of any such Other Incremental Commitment Agreement, which date in Term Loans (other than any event Incremental Term A Loans) shall be no earlier than the Maturity Date applicable to Initial Term B Loans, and, except as to pricing, amortization and final maturity date on (which (w) all fees required shall, subject to the other clauses of this proviso, be paid determined by the Borrower and the Incremental Term Loan Lenders in connection therewith at their sole discretion), the time of such effectiveness Other Incremental Term Loans shall have been paid terms, to the extent not consistent with the Initial Term B Loans or otherwise permitted under this Section 2.17(b), including by clause (includingvii) hereof, without limitationthat are (x) not more favorable, any agreed upon up-front taken as a whole, to the Lenders providing such Incremental Term Loans than the terms of the Initial Term B Loans or arrangement fees owing (y) otherwise reasonably acceptable to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental CommitmentsAgent; provided that the Administrative Agent shall have consented to such increaseany Incremental Term A Facility and Incremental Revolving Facility may, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the extent requested agreed by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL relevant Lenders and the Borrower, have covenants and events of default that, taken as a whole, are materially more restrictive than those applicable to such Incremental Lender the Initial Term B Loans as determined in conformity with good faith by the requirements of Section 1.05.
Borrower (c) At the time of any provision of Incremental Commitments pursuant to this Section 1.15, the ABL Borrowers shall, in coordination consultation with the Administrative Agent, repay outstanding Revolving Loans ) so long as any such covenants and events of certain default are solely for the benefit of the relevant Lenders under providing such Incremental Term A Loans or Incremental Revolving Loans,
(iv) the relevant Tranche Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than any Incremental Term A Loans) shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term B Loans,
(v) there shall be no borrower (other than the Borrower) or Tranchesguarantor (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 incur additional Revolving (iv) above with respect to Other Incremental Term Loans, amortization schedule applicable to the Loans from certain other Lenders under the relevant Tranche or Tranches (including made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Revolving Lenders or Incremental Term Loan Lenders), (even though as a result thereof such new Loans (; provided that in the event that the All-in Yield for any Incremental Term Loan incurred by the Borrower prior to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) first anniversary of the Effective Date under any Incremental Term Loan Commitment is higher than the then All-in Yield for the outstanding Borrowings Initial Term B Loans hereunder immediately prior to the incurrence of the respective applicable Incremental Term Loans by more than 50 basis points, then the Applicable Margins for the Initial Term B Loans at the time such Loans), in each case Incremental Term Loans are incurred shall be increased to the extent necessary so that all the All-in Yield for the Initial Term B Loans is equal to the All-in Yield for such Incremental Term Loans minus 50 basis points, and
(viii) notwithstanding anything to the contrary, to the extent agreed to by the relevant Lenders and the Borrower, any Incremental Amendment with respect to Incremental Revolving Commitments or Incremental Term A Loans, as applicable, may (i) include, with respect to Incremental Revolving Commitments only, customary provisions with respect to swingline loans and letters of credit to be issued pursuant to such Incremental Revolving Commitments and/or (ii) include one or more financial maintenance covenants that are solely for the benefit of the Lenders under with such Incremental Revolving Commitments or Incremental Term A Loans, as applicable, and that may be amended or waived in any manner solely by Lenders with a percentage of such Incremental Revolving Commitments or Incremental Term A Loans, as applicable, specified in such Incremental Amendment and a breach of which would allow such Lenders to terminate such Incremental Revolving Commitments or Incremental Term A Loans, as applicable, and declare all amounts owing thereunder to be immediately due and payable (and any such breach of such financial maintenance covenants shall not constitute an Event of Default for purposes of any Term Loans (other than any such Incremental Term A Loans) unless and until the relevant Tranche outstanding principal amount of such Incremental Revolving Commitments or Tranches participate Incremental Term A Loans, as applicable, were accelerated or terminated as a result thereof), with all such provisions described above to be reasonably satisfactory to the Administrative Agent. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall 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 and Incremental Term A Loans), when originally made, are included in each Borrowing of the outstanding borrowing of Initial Term B Loans on a pro rata basis, and (ii) all Revolving Loans under in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of the relevant Tranche or Tranches applicable Class of outstanding Revolving Loans on a pro rata on basis. Notwithstanding anything to the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to contrary, this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay 2.17 shall supersede any provisions in Section 2.15 or Section 9.02 to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretocontrary.
Appears in 1 contract
Sources: Credit Agreement (Maxlinear Inc)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request The Applicant Party may at any time time, and from time to time after the Initial Borrowing Date and prior time, by notice to the Revolving Loan Maturity DateAdministrative Agent, request an increase in the Aggregate Commitments provided for under this Agreement by an amount (in the aggregate for all such requests) not exceeding $500,000,000 (each such increase, an “Incremental Commitment Increase”); provided, that one (i) the maximum Aggregate Commitment hereunder shall not at any given time be in excess of $1,700,000,000, (ii) any such Incremental Commitment Increase shall be in an amount of $25,000,000 or more Lenders any whole multiple of $10,000,000 in excess thereof and (and/or one or more other Persons which are Eligible Transferees and which iii) each Incremental Commitment Increase will become Lenders be treated as provided below) provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the applicable terms and conditions contained in a Commitment under this Agreement; provided, make Revolving Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, howeverfurther, that (i) no Lender shall be obligated required to provide an all or any portion of such Incremental Commitment as a Increase and (ii) no Default or Event of Default shall have occurred and be continuing or would result of any such request by from incurring the ABL Borrowers, and until such time, if any, Incremental Commitment Increase on the Incremental Commitment Increase Effective Date (as such Lender has agreed term is defined below). To achieve the full amount of a requested increase, the Applicant Party may also invite additional banks or other financial institutions to become Incremental Increase Lenders pursuant to a joinder agreement in its sole discretion to provide an Incremental Commitment form and executed and delivered substance satisfactory to the Administrative Agent (each such joinder agreement, an “Incremental Commitment Agreement in respect thereof as Joinder Agreement”); provided in clause (b) of this Section 1.15, such that each Incremental Increase Lender shall not be obligated subject to fund any Revolving Loans in excess the approval of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any the Administrative Agent and each Issuing Lender (including any Eligible Transferee who will become a Lendersuch approval in each case not to be unreasonably withheld or delayed) may so provide an Incremental Commitment without and the consent approval of the Applicant Party, but not the approval of any other Lender, (iii) each provision of Incremental . If the Aggregate Commitments on a given date pursuant to are increased in accordance with this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL BorrowerSection, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment the Applicant Party shall determine the effective date (each, an the “Incremental LenderIncrease Effective Date”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness final allocation of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfiedincrease. The Administrative Agent shall promptly notify the Applicant Party and the Lenders of the final allocation of such increase and the Incremental Commitment Increase Effective Date. On each Incremental Commitment Increase Effective Date, each Lender, immediately prior to all Incremental Commitment Increases occurring on such Incremental Commitment Increase Effective Date, will automatically and without further action be deemed to have assigned to each Incremental Increase Lender providing a portion of the Incremental Commitment Increase on such Incremental Commitment Increase Effective Date and each such Incremental Increase Lender will automatically and without further action be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, each Lender as (including each Incremental Increase Lender) shall hold its Pro Rata Share of the participations hereunder in Letters of Credit. Notwithstanding anything to the effectiveness contrary set forth herein, the terms of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement Increase shall be increased identical to the Commitments made as of the Closing Date except that the Applicable Rate in respect of the Letter of Credit Fee and/or the Commitment Fee and any other pricing terms (including upfront fees) shall be determined by the aggregate amount of such Company and the applicable Incremental Commitments; provided that the Administrative Agent shall have consented Increase Lenders. As a condition precedent to such increase, the Applicant Party shall deliver to the Administrative Agent a certificate signed by a senior vice president, the chief financial officer or the treasurer of the Applicant Party (i) certifying that such Incremental Commitment Increase and the performance of the Applicant Party’s obligations thereunder (in form and substance reasonably satisfactory to the Administrative Agent) have been duly authorized (and attaching any evidence thereof reasonably requested by the Administrative Agent), and (ii) Schedule I certifying that, as of the Incremental Commitment Increase Effective Date, before and after giving effect to such Incremental Commitment Increase, (A) the representations and warranties contained in Article IV and the other Credit Documents are true (except that for such purposes, the representations and warranties contained in Section 4.04(a) shall be deemed modified to reflect refer to the revised Commitments most recent statements furnished pursuant to Section 5.01(a)), (B) no default or event of default under any engineering, procurement, construction or maintenance contract of the affected Lenders Applicant Party or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of the Applicant Party to perform its obligations under the Credit Documents and (iiiC) no Default shall have occurred and be continuing. This Section shall supersede any provisions in Sections 2.14(c), 2.14(d), 8.04 or 8.05 to the extent requested by contrary. In connection with any Incremental LenderCommitment Increase, Notes will be issuedthe Administrative Agent and the Company may, at without the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time consent of any provision of Incremental Commitments pursuant Lenders, effect such amendments to this Section 1.15, the ABL Borrowers shallany Credit Documents as may be necessary or appropriate, in coordination with the opinion of the Administrative Agent, repay outstanding Revolving Loans to effect the provisions of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (including the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto2.24.
Appears in 1 contract
Sources: Revolving Performance Letter of Credit Facility Agreement (Fluor Corp)