Incremental Revolving Commitments and Incremental Term Loans. (a) QVC, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable to the Administrative Agent) may from time to time agree that such Lenders shall incur Incremental Revolving Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering to the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying (i) the amount of the Incremental Revolving Commitments, (ii) the Revolving Facility with respect to which such Incremental Revolving Commitments will be incurred, and (iii) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers shall be in compliance with Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretion. (b) QVC and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving pro forma effect to such Borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) after giving pro forma effect thereto and to any concurrent transactions, the Borrowers shall be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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 (ii) as of the date of the Borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Lenders providing such Incremental Term Loans) 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 Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion. (c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents. (d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 2 contracts
Samples: Credit Agreement (Liberty Interactive Corp), Credit Agreement (QVC Inc)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that (i) each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.05, the Issuing Bank (which approvals shall not be unreasonably withheld, conditioned or delayed) and (ii) the aggregate principal amount of Incremental Revolving Commitment Activation Notice specifying Term A Loans permitted to be incurred hereunder shall not exceed $250,000,000. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective and (iii) whether such Incremental Facility is an Incremental Term A Facility.
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) except with respect to which any Escrow Incremental Term Loans until the assumption by the Borrower thereof, the Incremental Term Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations,
(iii) the scheduled final maturity date of any Incremental Term A Facility shall be no earlier than the Revolving Termination Date and the scheduled final maturity date of any other Incremental Term Facility shall be no earlier than the later of (x) 90 days following the Revolving Termination Date and (y) the scheduled final maturity date of any then outstanding Term Loans,
(iv) no Incremental Facility (other than the Term B-1 Term Loans incurred on the Term B-1 Effective Date and an Incremental Term A Facility) shall require scheduled amortization payments (excluding the final installment thereof) in excess of 1.00% per annum of the original aggregate principal amount thereof; and
(v) any Incremental Term Facility shall be on terms (other than pricing, amortization, maturity, prepayment premiums and mandatory prepayments) and pursuant to documentation substantially similar to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facilities (x) shall have no financial maintenance covenants of a different type than the financial covenants set forth in Section 6.10, and no financial maintenance covenants that are more restrictive than the financial covenants set forth in Section 6.10 and (y) shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable to the Revolving Facility as determined in good faith by the Borrower unless, in each case of clauses (x) and (y) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements); (II) become applicable only after the Revolving Facility shall have matured or been terminated and any Term Loans existing at such date have been paid in full or (III) apply to Escrow Incremental Term Loans solely until the Escrow Assumption with respect thereto occurs; provided, however, with respect to any Incremental Term Loans, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrower, except that the All-in Yield in respect of any such Incremental Term Loans may exceed the All-in Yield in respect of the Term B-1 Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Rate (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term B-1 Loans then outstanding.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended or amended and restated 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 Commitments will evidenced thereby as provided for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (including, without limitation, to provide for the establishment of Incremental Term Loans) and any such collateral and other documentation shall be incurreddeemed “Loan Documents” hereunder and may be memorialized in writing between the Administrative Agent and the Borrower and furnished to the other parties hereto.
(d) The Borrower may, by written notice to the Administrative Agent from time to time, request Escrow Incremental Term Loans which shall be incurred by an Escrow Borrower. Such notice shall set forth (i) the amount of the Escrow Incremental Term Loans being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the then remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Escrow Incremental Term Loans are requested to be borrowed by the Escrow Borrower and (iii) the applicable identity of the Escrow Borrower. The Escrow Incremental Revolving Commitment Closing Date. Notwithstanding Term Loans shall be incurred by an Escrow Borrower; provided that:
(i) prior to the foregoingEscrow Assumption thereof, (1) the Escrow Incremental Term Loans shall be incurred pursuant to and governed by loan documentation and escrow documentation, if any, separate from this Agreement and the other Loan Documents, which such loan documentation shall specify (A) the aggregate amount terms of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b)Escrow Assumption Agreement, (B) without limiting the foregoing clause (1)(A), terms of the aggregate amount Incremental Term Loans following the Escrow Assumption of Tranche 2 such Escrow Incremental Revolving Commitments shall not exceed $300,000,000, Term Loans and (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of that following the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder)Escrow Assumption, the Borrowers lenders thereunder shall agree to be in compliance with bound by this Agreement and the other Loan Documents as permitted to be amended by Section 6.10 2.02(c) and Section 9.02;
(E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2ii) unless otherwise agreed by the Administrative Agent, the administrative agent and escrow agent, if any, for such Escrow Incremental Term Loans shall be the Administrative Agent; provided that if the Administrative Agent acts as administrative agent for such Escrow Incremental Term Loans, the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans shall receive (A) documentation and other information requested by the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including without limitation, the Act, in each case as requested at least three Business Days prior to the date on which such Escrow Incremental Term Loans are requested to become effective and (B) all documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans;
(iii) Escrow Incremental Term Loans shall not be deemed to be outstanding under this Agreement or any other Loan Document for any purposes hereof (including, without limitation, for purposes of any financial calculation, the definition of “Obligations,” the definition of “Required Lenders” or Section 7.01, 9.02 or 9.03 hereof) and the obligations with respect thereto shall not be recourse to the Borrower or any Restricted Subsidiary, in each case, unless and until the Escrow Assumption with respect thereto shall have occurred;
(iv) at the time of the Escrow Assumption (A) the conditions specified in clauses (b) and (e) of this Section 2.02 (other than the condition in 2.02(e)(ii) with respect to complying with 4.02(c)) shall be satisfied as if the Borrower was borrowing such Escrow Incremental Term Loans on the date of such Escrow Assumption, (B) the Incremental Term Loan Commitments and/or Incremental Revolving Commitments plus such Escrow Incremental Term Loans then outstanding do not exceed the Incremental Amount at such time and (C) the aggregate principal amount of Incremental Term A Loans outstanding (including, if applicable, such Escrow Incremental Term Loans) incurred on or prior to such time do not exceed $250,000,000; and
(v) following any Escrow Assumption (A) each Tranche 1 Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan assumed by the Borrower shall be in a minimum amount of at least $100,000,000deemed outstanding under this Agreement as an Incremental Term Loan, (B) each Tranche 2 of the lenders of such Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan shall be in a minimum amount of at least $20,000,000 and deemed to be Lenders hereunder, (C) no more than four Escrow Incremental Revolving Commitment Activation Notices may Term Loans that were Eurocurrency Loans of a particular Borrowing shall initially be delivered Eurocurrency Loans of a Borrowing under this Agreement with an initial Interest Period equal to the then remaining Interest Period for such Borrowing under this Agreement (and with the same Eurocurrency Rate) and (D) Escrow Incremental Term Loans assumed by the Borrowers (in the aggregate) after the Closing Date. No existing Lender Borrower that were ABR Loans shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretioninitially be ABR Loans under this Agreement.
(be) QVC and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before Loan Commitment or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as Revolving Commitment shall become effective under this Section 2.02 unless (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or shall exist after giving pro forma effect to such Borrowing Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions the incurrence of Indebtedness thereunder and any substantially concurrent use of proceeds thereoftherefrom; provided, that in the event that any tranche of Incremental Facilities that are used to finance an acquisition permitted hereunder, to the extent the Incremental Lenders participating in such Incremental Facility agree, the foregoing clause (Ci) shall be tested at the time of the execution of the acquisition agreement related to such acquisition (provided, that such Incremental Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such Incremental Facility); (ii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); (iii) after giving pro forma effect thereto to such Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions, the Borrowers shall incurrence of Indebtedness thereunder (assuming such commitments are fully drawn on such date) and use of proceeds therefrom the Borrower would be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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) 6.10 as of the date of effectiveness last day of the applicable Limited Conditionality Acquisition Agreement and (ii) as of most recently ended Test Period only on the date of the Borrowing initial incurrence of (or commitment in respect of) such Indebtedness; and (iv) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(f) Upon each increase in the establishment of any Incremental Revolving Commitments pursuant to this Section 2.02, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental Revolving Commitments in respect of such increase, and each such Incremental Revolving 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 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 Lender (including each such Incremental Revolving Lender) will equal such Lender’s Revolving Commitment Percentage and 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 Incremental Term LoansRevolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, customary “Sungard” representations and warranties (reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such representations and warranties to increase), which prepayment or assignment shall be reasonably determined accompanied by accrued interest on the Revolving Loans being prepaid. The Administrative Agent and the Lenders providing such Incremental Term Loans) hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement 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, not apply to the incurrence of such Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase transactions effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Datepreceding sentence. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 2 contracts
Samples: Credit Agreement (Iac/Interactivecorp), Credit Agreement (Match Group, Inc.)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVC, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, The Borrower and one or more Lenders (including New Lenders reasonably acceptable to the Administrative Agent) may from time to time agree that such Lenders shall incur Incremental Revolving Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering to the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying (i) the amount of the Incremental Revolving Commitments, Commitments and (ii) the Revolving Facility with respect to which such Incremental Revolving Commitments will be incurred, and (iii) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, (DC) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers Consolidated Leverage Ratio shall be in compliance with less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10 and (ED) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, 100,000,000 and (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) Borrower after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretion.
(b) QVC The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable 509265-1754-14343-Active.16873744.13 Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC the Borrower and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving pro forma effect to such Borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) after giving pro forma effect thereto and to any concurrent transactions, the Borrowers Consolidated Leverage Ratio shall be in compliance with less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC the Borrower and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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 (ii) as of the date of the Borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Lenders providing such Incremental Term Loans) 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 Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC the Borrower after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 2 contracts
Samples: Credit Agreement (QVC Inc), Credit Agreement (QVC Inc)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVC, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, The Borrower and one or more Lenders (including New Lenders reasonably acceptable to the Administrative Agent) may from time to time agree that such Lenders shall incur Incremental Revolving Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering to the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying (i) the amount of the Incremental Revolving Commitments, Commitments and (ii) the Revolving Facility with respect to which such Incremental Revolving Commitments will be incurred, and (iii) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 1,000,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, and (DC) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other any concurrent transactions permitted hereunder)transactions, the Borrowers Consolidated Leverage Ratio shall be in compliance with less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments6.10, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, 100,000,000 and (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) Borrower after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretion.
(b) QVC The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC the Borrower and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 1,000,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving pro forma effect to such Borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) after giving pro forma effect thereto and to any concurrent transactions, the Borrowers Consolidated Leverage Ratio shall be in compliance with less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10, and (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC the Borrower and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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 (ii) as of the date of the Borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Lenders providing such Incremental Term Loans) 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 Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC the Borrower after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1G-1, 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 this Agreement and the other Loan Credit Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 2 contracts
Samples: Credit Agreement (Affiliate Investment, Inc.), Credit Agreement (Liberty Media Corp)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying Agent, each Issuing Bank and the Swing Line Lender (which approval shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent) and (ii) the Revolving Facility with respect to date on which such Incremental Revolving Term Loan Commitments will be incurred, and (iii) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of and/or Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant are requested to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers shall be in compliance with Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretionbecome effective.
(b) QVC The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make each Incremental Term Loans by executing Lender and/or Incremental Revolving Lender shall execute and delivering deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Facility Activation Notice specifying (i) the amount Loan Commitment of such Incremental Term LoansLender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms (other than upfront fees) and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) the applicable Incremental Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations,
(iii) (a) the scheduled final maturity date of any Incremental Term Facility Closing Date, shall be no earlier than the Term B Maturity Date and (iiib) the applicable Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity Date, of the Term B Facility,
(iv) no Incremental Term Facility shall participate on a greater than pro rata basis with the amortization schedule Term B Facility in any mandatory prepayment; and
(v) any Incremental Facility shall be on terms (other than pricing, amortization, maturity, prepayment premiums and mandatory prepayments) and pursuant to documentation substantially similar to the Term B Facility or Revolving Facility, as applicable, or otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facilities (x) shall have no financial maintenance covenants of a different type than the Financial Covenants, and no financial maintenance covenants that are more restrictive than the Financial Covenants and (y) shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable to the Revolving Facility as determined in good faith by the Borrower unless, in each case of clauses (x) and (y) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements); or (II) become applicable only after the Revolving Facility shall have matured or been terminated and any Term Loans existing at such date have been paid in full; provided, however, with respect to any Incremental Term Loans, which the All-in Yield shall comply with Section 2.07(a)be as agreed by the respective Incremental Term Lenders and the Borrower, except that the All-in Yield in respect of any such Incremental Term Loans may exceed the All-in Yield in respect of the Term B Loans by no more than 0.50%, or if it does so exceed such All-in Yield (vsuch difference, the “Term Yield Differential”) then the Applicable Rate for (or the “LIBOR floor” as provided in the following proviso) applicable to such Incremental Term LoansB Loans shall be increased such that after giving effect to such increase, (vi) the proposed original issue discount Term Yield Differential shall not exceed 0.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Incremental Term Loans, if anysuch floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the adjusted LIBOR rate in effect for an Interest Period of three months’ duration at such time, (vii) if applicableand, with respect to such excess, the manner in which prepayments of such Incremental “LIBOR floor” applicable to the outstanding Term B Loans shall be applied increased to an amount not to exceed the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) “LIBOR floor” applicable to such Incremental Term Loans acceptable prior to QVC any increase in the Applicable Rate applicable to such Term B Loans then outstanding.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended or amended and restated 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 Commitments evidenced thereby as provided for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (including, without limitation, to provide for the establishment of Incremental Term Loans) and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing between the Administrative Agent that are consistent with and the terms of this Section 2.02(bBorrower and furnished to the other parties hereto.
(d) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant subject to Section 6.01(b)1.09, (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before Loan Commitment or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as Revolving Commitment shall become effective under this Section 2.02 unless (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or shall exist after giving pro forma effect to such Borrowing Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions the incurrence of Indebtedness thereunder and any substantially concurrent use of proceeds thereof, therefrom; (Cii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); (iii) after giving pro forma effect thereto to such Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions, the Borrowers shall incurrence of Indebtedness thereunder (assuming such commitments are fully drawn on such date) and use of proceeds therefrom the Borrower would be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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) 6.10 as of the date of effectiveness last day of the applicable Limited Conditionality Acquisition Agreement and (ii) as of most recently ended Test Period only on the date of the Borrowing initial incurrence of (or commitment in respect of) such Indebtedness and (iv) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(e) Upon each increase in the establishment of any Incremental Revolving Commitments pursuant to this Section 2.02, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental Revolving Commitments in respect of such increase, and each such Incremental Revolving 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 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 Lender (including each such Incremental Revolving Lender) will equal such Lender’s Revolving Commitment Percentage and 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 Incremental Term LoansRevolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, customary “Sungard” representations and warranties (reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such representations and warranties to increase), which prepayment or assignment shall be reasonably determined accompanied by accrued interest on the Revolving Loans being prepaid. The Administrative Agent and the Lenders providing such Incremental Term Loans) hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement 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, not apply to the incurrence of such Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase transactions effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Datepreceding sentence. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 2 contracts
Samples: Credit Agreement (Donnelley Financial Solutions, Inc.), Credit Agreement (Donnelley Financial Solutions, Inc.)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVC, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, The Borrower and one or more Lenders (including New Lenders reasonably acceptable to the Administrative Agent) may from time to time agree that such Lenders shall incur Incremental Revolving Commitments with respect to or additional Revolving Commitments (collectively, the Tranche 1 Revolving Facility (“Tranche 1 Incremental New Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering to the Administrative Agent an Incremental a New Revolving Commitment Activation Notice specifying (i) the amount of the Incremental Revolving Commitments, Commitments or additional Revolving Commitments and (ii) the Revolving Facility with respect to which such Incremental Revolving Commitments will be incurred, and (iii) the applicable Incremental New Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental New Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b)250,000,000, (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental New Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, and (DC) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other any concurrent transactions permitted hereunder)transactions, the Borrowers Consolidated Leverage Ratio shall be in compliance with less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments6.10, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, 25,000,000 and (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental New Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) Borrower after the Closing Date. No existing Lender shall have any obligation to incur any Incremental New Revolving Commitments unless it agrees to do so in its sole discretion.
(b) QVC The Borrower and any one or more Lenders (including New LendersLenders reasonably acceptable to the Administrative Agent) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a2.07(c), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC the Borrower and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a2.07(c). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental New Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b)250,000,000, (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving pro forma effect to such Borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) after giving pro forma effect thereto and to any concurrent transactions, the Borrowers Consolidated Leverage Ratio shall be in compliance with less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10, and (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC the Borrower and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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 (ii) as of the date of the Borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Lenders providing such Incremental Term Loans) 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 Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 25,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC the Borrower after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1G-1, 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 this Agreement and the other Loan Credit Documents.
(d) With respect to Incremental Revolving Commitments, each Each Lender that is acquiring an Incremental additional Revolving Commitment for on a Revolving Facility on an Incremental New Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental additional Revolving Commitment) outstanding immediately prior to such Incremental New Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental additional Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental New Revolving Commitment on such Incremental New Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental New Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental New Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
(e) The terms and provisions of (i) each Incremental Revolving Loan shall be identical to those of the Revolving Loans and (ii) each Incremental Term Loan shall be identical to those of the Term Loans, respectively, except as otherwise set forth herein or in the New Revolving Commitment Activation Notice or the Incremental Term Facility Activation Notice, as the case may be. Each of the parties hereto hereby agrees that, upon the effectiveness of any New Revolving Commitment Activation Notice or Incremental Term Loan Facility Activation Notice, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the New Revolving Commitment Activation Notice and the Incremental Revolving Commitments or additional Revolving Commitments evidenced thereby, or the Incremental Term Facility Activation Notice and the Incremental Term Loans evidenced thereby, as the case may be, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
Appears in 2 contracts
Samples: Credit Agreement (Starz, LLC), Credit Agreement (Liberty Media Corp)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVC, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, The Borrower and one or more Lenders (including New Lenders reasonably acceptable to the Administrative Agent) may from time to time agree that such Lenders shall incur Incremental Revolving Commitments with respect to or additional Revolving Commitments (collectively, the Tranche 1 Revolving Facility (“Tranche 1 Incremental New Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering to the Administrative Agent an Incremental a New Revolving Commitment Activation Notice specifying (i) the amount of the Incremental Revolving Commitments, Commitments or additional Revolving Commitments and (ii) the Revolving Facility with respect to which such Incremental Revolving Commitments will be incurred, and (iii) the applicable Incremental New Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental New Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b)250,000,000, (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental New Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, (DC) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other any concurrent transactions permitted hereunder)transactions, the Borrowers Consolidated Leverage Ratio shall be in compliance with less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10 6.10, and (ED) the representations and warranties of each Credit Party set forth in Article III the Credit Documents to which it is a party are true and correct in all material respects at such time; provided that (x) any such representation or warranty that relates to an earlier date shall only be required to be true and correct as of such earlier date, and (y) to the extent any such representation or warranty is qualified by materiality or Material Adverse Effect, such representation or warranty 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 Incremental Revolving Commitmentsrespects, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, 25,000,000 and (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental New Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) Borrower after the Closing Date. No existing Lender shall have any obligation to incur any Incremental New Revolving Commitments unless it agrees to do so in its sole discretion.
(b) QVC The Borrower and any one or more Lenders (including New LendersLenders reasonably acceptable to the Administrative Agent) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a2.07(b), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC the Borrower and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a2.07(b). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental New Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b)250,000,000, (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving pro forma effect to such Borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) after giving pro forma effect thereto and to any concurrent transactions, the Borrowers Consolidated Leverage Ratio shall be in compliance with less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10, (D) the covenants and events Events of default Default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC the Borrower and its Restricted Subsidiaries) than those the equivalent covenants and events of default applicable to the Revolving Loans Facility, to the extent applicable, and (E) the representations and warranties of each Credit Party set forth in Article III the Credit Documents to which it is a party are true and correct in all material respects at such time; provided that (x) any such representation or warranty that relates to an earlier date shall only be required to be true and correct as of such earlier date, and (y) to the extent any such representation or warranty is qualified by materiality or Material Adverse Effect, such representation or warranty 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 Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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 (ii) as of the date of the Borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Lenders providing such Incremental Term Loans) 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 Incremental Term Loansrespects; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 25,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC the Borrower after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1G-1, 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 this Agreement and the other Loan Credit Documents.
(d) With respect to Incremental Revolving Commitments, each Each Lender that is acquiring an Incremental additional Revolving Commitment for on a Revolving Facility on an Incremental New Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental additional Revolving Commitment) outstanding immediately prior to such Incremental New Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental additional Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental New Revolving Commitment on such Incremental New Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental New Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental New Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
(e) The terms and provisions of each Incremental Facility shall be substantially consistent with those of the Revolving Facility, except as otherwise set forth herein or in the New Revolving Commitment Activation Notice or the Incremental Term Facility Activation Notice, as the case may be; provided that in no event may the terms and provisions (other than with respect to pricing) of any Incremental Facility be more favorable to the lenders under such Facility (or more restrictive on the Borrower and its Restricted Subsidiaries) than the equivalent terms and provisions of the Revolving Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any New Revolving Commitment Activation Notice or Incremental Term Loan Facility Activation Notice, this Agreement shall be deemed to be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the New Revolving Commitment Activation Notice and the Incremental Revolving Commitments or additional Revolving Commitments evidenced thereby, or the Incremental Term Facility Activation Notice and the Incremental Term Loans evidenced thereby, as the case may be, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
Appears in 1 contract
Samples: Credit Agreement (Starz, LLC)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying Agent, each Issuing Bank and the Swing Line Lender (which approval shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent) and (ii) the Revolving Facility with respect to date on which such Incremental Revolving Term Loan Commitments will be incurred, and (iii) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of and/or Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant are requested to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers shall be in compliance with Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretionbecome effective.
(b) QVC The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make each Incremental Term Loans by executing Lender and/or Incremental Revolving Lender shall execute and delivering deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Facility Activation Notice specifying (i) the amount Loan Commitment of such Incremental Term Loans, (ii) Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Facility Closing DateLoans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms (other than upfront fees) and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) any Incremental Term Loan Commitments shall have the same terms (other than upfront fees) as the Delayed Draw Term A Loan Commitments and the Delayed Draw Term A Loans, as applicable, and pursuant to the same documentation applicable to the Delayed Draw Term A Loan Commitments and Delayed Draw Term A Loans, and
(iii) the applicable Incremental Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended or amended and restated to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Maturity DateLoan Commitments and/or Incremental Revolving Commitments evidenced thereby as provided for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (including, (iv) without limitation, to provide for the amortization schedule for such establishment of Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for and any such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans collateral and other documentation shall be applied to the installments thereof, deemed “Loan Documents” hereunder and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and may be memorialized in writing between the Administrative Agent that are consistent with and the terms of this Section 2.02(bBorrower and furnished to the other parties hereto.
(d) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant subject to Section 6.01(b)1.09, (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before Loan Commitment or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as Revolving Commitment shall become effective under this Section 2.02 unless (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or shall exist after giving pro forma effect to such Borrowing Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions the incurrence of Indebtedness thereunder and any substantially concurrent use of proceeds thereof, therefrom; (Cii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); (iii) after giving pro forma effect thereto to such Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions, the Borrowers shall incurrence of Indebtedness thereunder (assuming such commitments are fully drawn on such date) and use of proceeds therefrom the Borrower would be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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) 6.10 as of the date of effectiveness last day of the applicable Limited Conditionality Acquisition Agreement and (ii) as of most recently ended Test Period only on the date of the Borrowing initial incurrence of (or commitment in respect of) such Indebtedness and (iv) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(e) Upon each increase in the establishment of any Incremental Revolving Commitments pursuant to this Section 2.02, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental Revolving Commitments in respect of such increase, and each such Incremental Revolving 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 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 Lender (including each such Incremental Revolving Lender) will equal such Lender’s Revolving Commitment Percentage and 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 Incremental Term LoansRevolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, customary “Sungard” representations and warranties (reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such representations and warranties to increase), which prepayment or assignment shall be reasonably determined accompanied by accrued interest on the Revolving Loans being prepaid. The Administrative Agent and the Lenders providing such Incremental Term Loans) hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement 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, not apply to the incurrence of such Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase transactions effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Datepreceding sentence. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (Donnelley Financial Solutions, Inc.)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that (i) each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.05, the Issuing Bank (which approvals shall not be unreasonably withheld, conditioned or delayed) and (ii) the aggregate principal amount of Incremental Revolving Commitment Activation Notice specifying Term A Loans permitted to be incurred hereunder shall not exceed $250,000,000. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective and (iii) whether such Incremental Facility is an Incremental Term A Facility.
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) except with respect to which any Escrow Incremental Term Loans until the assumption by the Borrower thereof, the Incremental Term Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations,
(iii) the scheduled final maturity date of any Incremental Term A Facility shall be no earlier than the Revolving Termination Date and the scheduled final maturity date of any other Incremental Term Facility shall be no earlier than the later of (x) 90 days following the Revolving Termination Date and (y) the scheduled final maturity date of any then outstanding Term Loans,
(iv) no Incremental Facility (other than an Incremental Term A Facility) shall require scheduled amortization payments (excluding the final installment thereof) in excess of 1.00% per annum of the original aggregate principal amount thereof; and
(v) any Incremental Term Facility shall be on terms (other than pricing, amortization, maturity, prepayment premiums and mandatory prepayments) and pursuant to documentation substantially similar to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facilities (x) shall have no financial maintenance covenants of a different type than the financial covenants set forth in Section 6.10, and no financial maintenance covenants that are more restrictive than the financial covenants set forth in Section 6.10, (y) in the case of the first Incremental Term Facility to be incurred under this Agreement, shall not have negative covenants and/or default provisions that are more restrictive than those applicable to the Revolving Facility and (z) in the case of each other Incremental Term Facility, shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable to the Revolving Facility as determined in good faith by the Borrower unless, in each case of clauses (x), (y) and (z) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements); (II) become applicable only after the Revolving Facility shall have matured or been terminated and any Term Loans existing at such date have been paid in full or (III) apply to Escrow Incremental Term Loans solely until the Escrow Assumption with respect thereto occurs.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended or amended and restated 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 Commitments will evidenced thereby as provided for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (including, without limitation, to provide for the establishment of Incremental Term Loans) and any such collateral and other documentation shall be incurreddeemed “Loan Documents” hereunder and may be memorialized in writing between the Administrative Agent and the Borrower and furnished to the other parties hereto.
(d) The Borrower may, by written notice to the Administrative Agent from time to time, request Escrow Incremental Term Loans which shall be incurred by an Escrow Borrower. Such notice shall set forth (i) the amount of the Escrow Incremental Term Loans being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the then remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Escrow Incremental Term Loans are requested to be borrowed by the Escrow Borrower and (iii) the applicable identity of the Escrow Borrower. The Escrow Incremental Revolving Commitment Closing Date. Notwithstanding Term Loans shall be incurred by an Escrow Borrower; provided that:
(i) prior to the foregoingEscrow Assumption thereof, (1) the Escrow Incremental Term Loans shall be incurred pursuant to and governed by loan documentation and escrow documentation, if any, separate from this Agreement and the other Loan Documents, which such loan documentation shall specify (A) the aggregate amount terms of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b)Escrow Assumption Agreement, (B) without limiting the foregoing clause (1)(A), terms of the aggregate amount Incremental Term Loans following the Escrow Assumption of Tranche 2 such Escrow Incremental Revolving Commitments shall not exceed $300,000,000, Term Loans and (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of that following the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder)Escrow Assumption, the Borrowers lenders thereunder shall agree to be in compliance with bound by this Agreement and the other Loan Documents as permitted to be amended by Section 6.10 2.02(c) and Section 9.02 ;
(E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2ii) unless otherwise agreed by the Administrative Agent, the administrative agent and escrow agent, if any, for such Escrow Incremental Term Loans shall be the Administrative Agent; provided that if the Administrative Agent acts as administrative agent for such Escrow Incremental Term Loans, the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans shall receive (A) documentation and other information requested by the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including without limitation, the Act, in each case as requested at least three Business Days prior to the date on which such Escrow Incremental Term Loans are requested to become effective and (B) all documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans;
(iii) Escrow Incremental Term Loans shall not be deemed to be outstanding under this Agreement or any other Loan Document for any purposes hereof (including, without limitation, for purposes of any financial calculation, the definition of “Obligations,” the definition of “Required Lenders” or Section 7.01, 9.02 or 9.03 hereof) and the obligations with respect thereto shall not be recourse to the Borrower or any Restricted Subsidiary, in each case, unless and until the Escrow Assumption with respect thereto shall have occurred;
(iv) at the time of the Escrow Assumption (A) the conditions specified in clauses (b) and (e) of this Section 2.02(other than the condition in 2.02(e)(ii) with respect to complying with 4.02(c)) shall be satisfied as if the Borrower was borrowing such Escrow Incremental Term Loans on the date of such Escrow Assumption, (B) the Incremental Term Loan Commitments and/or Incremental Revolving Commitments plus such Escrow Incremental Term Loans then outstanding do not exceed the Incremental Amount at such time and (C) the aggregate principal amount of Incremental Term A Loans outstanding (including, if applicable, such Escrow Incremental Term Loans) incurred on or prior to such time do not exceed $250,000,000; and
(v) following any Escrow Assumption (A) each Tranche 1 Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan assumed by the Borrower shall be in a minimum amount of at least $100,000,000deemed outstanding under this Agreement as an Incremental Term Loan, (B) each Tranche 2 of the lenders of such Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan shall be in a minimum amount of at least $20,000,000 and deemed to be Lenders hereunder, (C) no more than four Escrow Incremental Revolving Commitment Activation Notices may Term Loans that were Eurocurrency Loans of a particular Borrowing shall initially be delivered Eurocurrency Loans of a Borrowing under this Agreement with an initial Interest Period equal to the then remaining Interest Period for such Borrowing under this Agreement (and with the same Eurocurrency Rate) and (D) Escrow Incremental Term Loans assumed by the Borrowers (in the aggregate) after the Closing Date. No existing Lender Borrower that were ABR Loans shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretioninitially be ABR Loans under this Agreement.
(be) QVC and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before Loan Commitment or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as Revolving Commitment shall become effective under this Section 2.02 unless (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or shall exist after giving pro forma effect to such Borrowing Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions the incurrence of Indebtedness thereunder and any substantially concurrent use of proceeds thereoftherefrom; provided, that in the event that any tranche of Incremental Facilities that are used to finance an acquisition permitted hereunder, to the extent the Incremental Lenders participating in such Incremental Facility agree, the foregoing clause (Ci) shall be tested at the time of the execution of the acquisition agreement related to such acquisition (provided, that such Incremental Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such Incremental Facility); (ii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); (iii) after giving pro forma effect thereto to such Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions, the Borrowers shall incurrence of Indebtedness thereunder (assuming such commitments are fully drawn on such date) and use of proceeds therefrom the Borrower would be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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) 6.10 as of the date of effectiveness last day of the applicable Limited Conditionality Acquisition Agreement and (ii) as of most recently ended Test Period only on the date of the Borrowing initial incurrence of (or commitment in respect of) such Indebtedness; and (iv) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(f) Upon each increase in the establishment of any Incremental Revolving Commitments pursuant to this Section 2.02, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental Revolving Commitments in respect of such increase, and each such Incremental Revolving 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 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 Lender (including each such Incremental Revolving Lender) will equal such Lender’s Revolving Commitment Percentage and 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 Incremental Term LoansRevolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, customary “Sungard” representations and warranties (reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such representations and warranties to increase), which prepayment or assignment shall be reasonably determined accompanied by accrued interest on the Revolving Loans being prepaid. The Administrative Agent and the Lenders providing such Incremental Term Loans) hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement 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, not apply to the incurrence of such Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase transactions effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Datepreceding sentence. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (Match Group, Inc.)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying Agent. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent) and (ii) the Revolving Facility with respect to date on which such Incremental Revolving Term Loan Commitments will be incurred, and (iii) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of and/or Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant are requested to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers shall be in compliance with Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretionbecome effective.
(b) QVC The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make each Incremental Term Loans by executing Lender and/or Incremental Revolving Lender shall execute and delivering deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Facility Activation Notice specifying (i) the amount Loan Commitment of such Incremental Term Loans, Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall require no mandatory commitment reduction prior to the Initial Term Loan Maturity Date,
(ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of and Incremental Term Loans shall not exceed $1,500,000,000 minus be guaranteed by any subsidiaries of the outstanding principal amount Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations,
(iii) the scheduled final maturity date of Pari Passu Indebtedness any Incremental Facility shall be no earlier than the Initial Term Loan Maturity Date,
(iv) the Weighted Average Life to maturity of any Incremental Term Facility shall be no shorter than the weighted average life to maturity of the Initial Term Loan Facility; and
(v) any Incremental Term Facility shall be on terms (other than the Existing Notespricing, amortization, maturity, prepayment premiums and mandatory prepayments) incurred and pursuant to documentation substantially similar to the Initial Term Loan Facility or otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facilities (x) shall have no financial maintenance covenants of a different type than the financial covenants set forth in Section 6.01(b)6.10, and no financial maintenance covenants that are more restrictive than the financial covenants set forth in Section 6.10 and (By) no Incremental shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable to the Initial Term Loan Facility as determined in good faith by the Borrower unless, in each case of clauses (x) and (y) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements) or (II) become applicable only after the Initial Term Loans may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use existing on the date of the proceeds thereof; provided that, with initial incurrence of (or commitment in respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), of) such Incremental Term Loans may Facility have been paid in full.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Document (including any Collateral Document) shall be incurred so long as amended or amended and restated (i) as to the extent (but only to the extent) necessary to reflect the existence and terms of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation Incremental Term Loan Commitments and/or Incremental Revolving Commitments evidenced thereby and (ii) in the case of any Incremental Assumption Agreement relating to an Incremental Revolving Commitment, to reflect provisions relating to revolving credit facilities, including, but not limited to, provisions related to defaulting lenders, extended commitments, refinancing amendments, letter of credit subfacilities and/or borrowings in a currency other than Dollars, in each case, as provided for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (including, without limitation, to provide for the date establishment of Incremental Loans) and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing between the Borrowing of such Administrative Agent and the Borrower and furnished to the other parties hereto.
(d) [Reserved].
(e) Notwithstanding the foregoing, no Incremental Term Loans, Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.02 unless (i) no Default or Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or shall exist after giving pro forma effect to such Borrowing Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions the incurrence of Indebtedness thereunder and any substantially concurrent use of proceeds thereoftherefrom; provided that in the event that any tranche of Incremental Facilities that are used to finance an acquisition permitted hereunder, to the extent the Incremental Lenders participating in such Incremental Facility agree, the foregoing clause (Ci) shall be tested at the time of the execution of the acquisition agreement related to such acquisition (provided that such Incremental Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such Incremental Facility); (ii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); (iii) after giving pro forma effect thereto to such Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions, the Borrowers shall incurrence of Indebtedness thereunder (assuming such commitments are fully drawn on such date) and use of proceeds therefrom the Borrower would be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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) 6.10 as of the date of effectiveness last day of the applicable Limited Conditionality Acquisition Agreement and (ii) as of most recently ended Test Period only on the date of the Borrowing initial incurrence of (or commitment in respect of) such Incremental Term Loans, customary “Sungard” representations Indebtedness; and warranties (with such representations and warranties to be reasonably determined by iv) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Lenders providing Closing Date as to such Incremental Term Loans) 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 Incremental Term Loans; and (2) unless otherwise agreed matters as are reasonably requested by the Administrative Agent, (A) . The Administrative Agent shall promptly notify each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and as to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits effectiveness of this Agreement and the other Loan Documentseach Incremental Assumption Agreement.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying Agent, each Issuing Bank and the Swing Line Lender (which approval shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent) and (ii) the Revolving Facility with respect to date on which such Incremental Revolving Term Loan Commitments will be incurred, and (iii) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of and/or Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant are requested to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers shall be in compliance with Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretionbecome effective.
(b) QVC The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make each Incremental Term Loans by executing Lender and/or Incremental Revolving Lender shall execute and delivering deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Facility Activation Notice specifying (i) the amount Loan Commitment of such Incremental Term LoansLender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms (other than upfront fees) and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) the applicable Incremental Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations, any Incremental Revolving Commitment shall have the same payment priority as the Revolving Commitments and any Incremental Term Facility Closing Dateshall have the same payment priority as the Term B Facility, (iii) the applicable Incremental Term Maturity Date, (iva) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments scheduled final maturity date of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for Facility shall be no earlier than the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation B Maturity Date and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving pro forma effect to such Borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) after giving pro forma effect thereto and to any concurrent transactions, the Borrowers shall be in compliance with Section 6.10, (D) the covenants and events Weighted Average Life to Maturity of default applicable to any Incremental Term Loan Facility shall be no more favorable shorter than the remaining Weighted Average Life to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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 Maturity of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement and (ii) as of the date of the Borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Lenders providing such Incremental Term Loans) 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 Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.B Facility,
Appears in 1 contract
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying Agent, each Issuing Bank and the Swing Line Lender (which approval shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent) and (ii) the Revolving Facility with respect to date on which such Incremental Revolving Term Loan Commitments will be incurred, and (iii) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of and/or Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant are requested to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers shall be in compliance with Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretionbecome effective.
(b) QVC The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make each Incremental Term Loans by executing Lender and/or Incremental Revolving Lender shall execute and delivering deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Facility Activation Notice specifying (i) the amount Loan Commitment of such Incremental Term Loans, (ii) Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Facility Closing DateLoans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms (other than upfront fees) and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) any Incremental Term Loan Commitments shall have the same terms (other than upfront fees) as the Delayed Draw Term A Loan Commitments and the Delayed Draw Term A Loans, as applicable, and pursuant to the same documentation applicable to the Delayed Draw Term A Loan Commitments and Delayed Draw Term A Loans, and
(iii) the applicable Incremental Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended or amended and restated to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Maturity DateLoan Commitments and/or Incremental Revolving Commitments evidenced thereby as provided for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (including, (iv) without limitation, to provide for the amortization schedule for such establishment of Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for and any such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans collateral and other documentation shall be applied to the installments thereof, deemed “Loan Documents” hereunder and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and may be memorialized in writing between the Administrative Agent that are consistent with and the terms of this Section 2.02(bBorrower and furnished to the other parties hereto.
(d) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant subject to Section 6.01(b)1.09, (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before Loan Commitment or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as Revolving Commitment shall become effective under this Section 2.02 unless (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or shall exist after giving pro forma effect to such Borrowing Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions the incurrence of Indebtedness thereunder and any substantially concurrent use of proceeds thereof, therefrom; (Cii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); (iii) after giving pro forma effect thereto to such Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions, the Borrowers shall incurrence of Indebtedness thereunder (assuming such commitments are fully drawn on such date) and use of proceeds therefrom the Borrower would be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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) 6.10 as of the date of effectiveness last day of the applicable Limited Conditionality Acquisition Agreement and (ii) as of most recently ended Test Period only on the date of the Borrowing initial incurrence of (or commitment in respect of) such Indebtedness and (iv) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(e) Upon each increase in the establishment of any Incremental Revolving Commitments pursuant to this Section 2.02, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental Revolving Commitments in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Xxxxxx’s participations hereunder in outstanding Letters of 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 Lender (including each such Incremental Revolving Lender) will equal such Xxxxxx’s Revolving Commitment Percentage and 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 Incremental Term LoansRevolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, customary “Sungard” representations and warranties (reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such representations and warranties to increase), which prepayment or assignment shall be reasonably determined accompanied by accrued interest on the Revolving Loans being prepaid. The Administrative Agent and the Lenders providing such Incremental Term Loans) hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement 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, not apply to the incurrence of such Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase transactions effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Datepreceding sentence. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (Donnelley Financial Solutions, Inc.)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVC, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, The Borrower and one or more Lenders (including New Lenders reasonably acceptable subject to the Administrative Agentclause (d) below) may from time to time agree that such Lenders shall incur Incur Incremental Revolving Commitments with respect to (which shall have the Tranche 1 Revolving Facility (“Tranche 1 Incremental effect of increasing the amount of the existing Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering to the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying (ix) the amount of the Incremental Revolving Commitments, (ii) the Revolving Facility with respect to which such Incremental Revolving Commitments will be incurred, and (iiiy) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, ,
(1) (Ai) the aggregate amount of (A) the Incremental Term Loans and Incremental Revolving Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.02 plus (B) the aggregate principal amount of Permitted Additional Debt Incurred under Section 6.01(p)(ii)(A) (x) shall not exceed, as of the date of Incurrence, the sum of (x) the Incremental LimitBase Amount plus (y) an aggregate additional amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant Revolving Commitments, such that, subject to Section 6.01(b)1.06, after giving pro forma effect to such Incurrence (B) without limiting the foregoing clause (1)(Aand after giving effect to any transaction to be consummated in connection therewith and assuming that all Incremental Revolving Commitments then outstanding were fully drawn), the aggregate amount Borrower would be in compliance with a Senior Secured Leverage Ratio as of Tranche 2 the last day of the Test Period most recently ended on or prior to the date of the Incurrence of any such Incremental Revolving Commitments shall not exceed $300,000,000Commitments, calculated on a pro forma basis, as if such Incurrence (Cand transaction) had occurred on the first day of such Test Period, that is no greater than 3.50:1.0; provided that Incremental Term Loans may be Incurred without regard to the Incremental Limit (so long as nosuch Senior Secured Leverage Ratio and without regard as to whether any Default or Event of Default has occurred and is continuing) to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of incurrence of such Incremental Term Loans (or substantially concurrently therewith) to prepay any other outstanding Incremental Term Loans;
(ii) subject to Section 1.06, no Incremental Revolving Commitments may be incurred Incurred if a Default or Event of Default (or, in the case of Incremental Revolving Commitments Incurred to finance any Investment being made in connection with an acquisition of Capital Stock or assets of another Person, no Event of Default under Section 7.01(a), (b), (h) or (i)) would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, ,
(Diii) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers shall be in compliance with Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 any Incremental Revolving Commitment effected shall be on the same terms, pursuant to this paragraph the same documentation, and treated the same as the existing Revolving Facility (including with respect to maturity date thereof) and shall be in a minimum amount considered to be part of at least $100,000,000the Revolving Facility (it being understood that, if required to consummate an Incremental Revolving Commitment, (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretion.
(b) QVC and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (vx) the Applicable Rate for such Incremental Term Loans, (vi) Rates and Commitment Fee Rates on the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental existing Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans Facility may be incurred if a Default would be in existence immediately before increased and additional upfront or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans similar fees may be incurred so long as (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving pro forma effect payable to such Borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) after giving pro forma effect thereto and to any concurrent transactions, the Borrowers shall be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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 (ii) as of the date of the Borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Lenders providing such Incremental Term Loans) 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 Incremental Term Loans; Revolving Commitment and (2y) any Previously Absent Financial Maintenance Covenant may be added without any consent of any Person so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of the entire Revolving Facility);
(iv) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four (4) Incremental Term Facility Revolving Commitment Activation Notices may be delivered by QVC the Borrower after the ClosingSecond Amendment Effective Date; and
(v) no existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretion and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Revolving Commitment.
(b) The Borrower and any one or more Lenders (including New Lenders subject to clause (d) below) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (A) the principal amount of such Incremental Term Loans, (B) the applicable Incremental Term Facility Closing Date, (C) the applicable Incremental Term Maturity Date; provided that no more than $250,000,000350,000,000 of Incremental Term Loans may have a final maturity date prior to the Latest Maturity Date, (D) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (E) the Applicable Rate and any rate floors for such Incremental Term Loans, (F) the proposed original issue or other funding discounts, upfront fees or other fees, (G) any Borrower and Borrower affiliate loan purchase provisions and (H) the prepayment terms (which may include customary excess cash flow sweeps, prepayments with the Net Available Cash of dispositions or Casualty Events, issuances of Capital Stock or Incurrences of Indebtedness) and premiums, if any, applicable to such Incremental Term Loans, and the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof and as between Classes of Incremental Term Loans). No Notwithstanding the foregoing,
(i) the aggregate amount of (A) the Incremental Term Loans and Incremental Revolving Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.02 plus (B) the aggregate principal amount of Permitted Additional Debt Incurred under Section 6.01(p)(ii)(A) (x) shall not exceed, as of the date of Incurrence, (x) the Incremental LimitBase Amount plus (y) an aggregate additional amount of Incremental Term Loans, such that, subject to Section 1.06, after giving pro forma effect to such Incurrence (and after giving effect to any transaction to be consummated in connection therewith and assuming that all Incremental Revolving Commitments then outstanding were fully drawn), the Borrower would be in compliance with a Senior Secured Leverage Ratio as of the last day of the Test Period most recently ended on or prior to the date of the Incurrence of any such Incremental Term Loans, calculated on a pro forma basis, as if such Incurrence (and transaction) had occurred on the first day of such Test Period, that is no greater than 3.50:1.0; provided that Incremental Term Loans may be incurred without regard to the Incremental Limit (so long as nosuch Senior Secured Leverage Ratio and without regard as to whether any Default or Event of Default has occurred and is continuing) to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of incurrence of such Incremental Term Loans (or substantially concurrently therewith) to prepay any other outstanding Incremental Term Loans,;
(ii) subject to Section 1.06, no Incremental Term Loans may be incurred if a Default or Event of Default (or, in the case of Incremental Term Loans Incurred to finance any Investment being made in connection with an acquisition of Capital Stock or assets of another Person, no Event of Default under Section 7.01(a), (b), (h) or (i)) would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof;
(iii) Incremental Term Loans may otherwise have terms and conditions different from those of the Revolving Facility; provided that (x) except with respect to matters contemplated by clauses (A)(subject to clause (i) above) through (H) above, any differences shall be reasonably satisfactory to the Administrative Agent to the extent such differences are not consistent with the requirements of clause (b) of the definition of “Permitted Additional Debt”; provided that a certificate of a Financial Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence, issuance or other obtaining of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees);
(iv) unless otherwise agreed by the Administrative Agent, (A) no Class of Incremental Term Loans shall be in an aggregate principal amount less than $100,000,000 and (B) no more than four (4) Classes of Incremental Term Loans may be outstanding under this Agreement at any time;
(v) no existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretiondiscretion and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans; and
(vi) any Incremental Term Loan that is repaid may not be reborrowed.
(c) Each Incremental Revolving Commitment and/or Incremental Term Loan shall have the same guarantees as and be secured on an equal priority basis by the collateral securing the Revolving Facility and constitute “Obligations” pursuant to the existing Credit Documents.
(d) Any additional bank, financial institution or other entity whichPerson that, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1G-1, whereupon such bank, financial institution or other entity Person (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 this Agreement and the other Loan Credit Documents. Solely with respect to any Incremental Revolving Commitments, the Administrative Agent shall have consent rights (not to be unreasonably withheld, conditioned or delayed) with respect to such New Lender, if such consent would be required under Section 9.05 for an assignment of Revolving Loans or Revolving Commitments, as applicable, to such New Lender, and solely with respect to any Incremental Revolving Commitments, the Issuing Bank shall have consent rights (not to be unreasonably withheld, conditioned or delayed) with respect to such New Lender, if such consent would be required under Section 9.05 for an assignment of Revolving Loans or Revolving Commitments, as applicable, to such New Lender.
(de) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
(f) Commitments in respect of Incremental Revolving Commitments or Incremental Term Loans shall become Commitments (or in the case of an Incremental Revolving Commitments to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an Activation Notice, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each New Lender, if any, and the Administrative Agent. Each such Activation Notice may, subject to the limitations set forth in this Section 2.02, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.02. The effectiveness of any Activation Notice and the occurrence of any Borrowing pursuant to such Activation Notice shall be subject to the satisfaction of such conditions as the parties thereto shall agree.
Appears in 1 contract
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that (i) each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.05, the Issuing Bank (which approvals shall not be unreasonably withheld, conditioned or delayed) and (ii) the aggregate principal amount of Incremental Revolving Commitment Activation Notice specifying Term A Loans permitted to be incurred hereunder shall not exceed $250,000,000. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the Revolving Facility with respect to date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments will be incurred, are requested to become effective and (iii) the applicable whether such Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Facility is an Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers shall be in compliance with Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretionA Facility.
(b) QVC The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make each Incremental Term Loans by executing Lender and/or Incremental Revolving Lender shall execute and delivering deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Facility Activation Notice specifying (i) the amount Loan Commitment of such Incremental Term Loans, (ii) Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Facility Closing DateLoans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) except with respect to any Escrow Incremental Term Loans until the assumption by the Borrower thereof, the Incremental Term Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations,
(iii) the applicable scheduled final maturity date of any Incremental Term Maturity Date, A Facility shall be no earlier than the Revolving Termination Date and the scheduled final maturity date of any other Incremental Term Facility shall be no earlier than the later of (x) 90 days following the Revolving Termination Date and (y) the scheduled final maturity date of any then outstanding Term Loans,
(iv) no Incremental Facility (other than the Term B-1 Term Loans incurred on the Term B-1 Effective Date and an Incremental Term A Facility) shall require scheduled amortization schedule payments (excluding the final installment thereof) in excess of 1.00% per annum of the original aggregate principal amount thereof; and
(v) any Incremental Term Facility shall be on terms (other than pricing, amortization, maturity, prepayment premiums and mandatory prepayments) and pursuant to documentation substantially similar to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facilities (x) shall have no financial maintenance covenants of a different type than the financial covenants set forth in Section 6.10, and no financial maintenance covenants that are more restrictive than the financial covenants set forth in Section 6.10, (y) in the case of the first Incremental Term Facility to be incurred under this Agreement, shall not have negative covenants and/or default provisions that are more restrictive than those applicable to the Revolving Facility and (z) in the case of each other Incremental Term Facility,6.10 and (y) shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable to the Revolving Facility as determined in good faith by the Borrower unless, in each case of clauses (x), and (y) and (z) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements); (II) become applicable only after the Revolving Facility shall have matured or been terminated and any Term Loans existing at such date have been paid in full or (III) apply to Escrow Incremental Term Loans solely until the Escrow Assumption with respect thereto occurs; provided, however, with respect to any Incremental Term Loans, which the All-in Yield shall comply with Section 2.07(a)be as agreed by the respective Incremental Term Lenders and the Borrower, except that the All-in Yield in respect of any such Incremental Term Loans may exceed the All-in Yield in respect of the Term B-1 Loans by no more than 0.50%, or if it does so exceed such All-in Yield (vsuch difference, the “Term Yield Differential”) then the Applicable Rate for (or the “LIBOR floor” as provided in the following proviso) applicable to such Incremental Term LoansB-1 Loans shall be increased such that after giving effect to such increase, (vi) the proposed original issue discount Term Yield Differential shall not exceed 0.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Incremental Term Loans, if anysuch floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, (vii) if applicableand, with respect to such excess, the manner in which prepayments of such Incremental “LIBOR floor” applicable to the outstanding Term B-1 Loans shall be applied increased to an amount not to exceed the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) “LIBOR floor” applicable to such Incremental Term Loans acceptable prior to QVC any increase in the Applicable Rate applicable to such Term B-1 Loans then outstanding.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended or amended and restated to the Administrative Agent extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments evidenced thereby as provided for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that are consistent with is necessary to effect the terms provisions of this Section 2.02(b) and Section 2.07(a). Notwithstanding 2.02 (including, without limitation, to provide for the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount establishment of Incremental Term Loans Loans) and any such collateral and other documentation shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans be deemed “Loan Documents” hereunder and may be incurred if a Default would be memorialized in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving pro forma effect to such Borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) after giving pro forma effect thereto and to any concurrent transactions, the Borrowers shall be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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 (ii) as of the date of the Borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by writing between the Administrative Agent and the Lenders providing such Incremental Term Loans) shall be true Borrower 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 Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and furnished to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement and the other Loan Documentsparties hereto.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Samples: Incremental Assumption Agreement and Amendment No. 1 (Iac/Interactivecorp)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVC, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, The Borrower and one or more Lenders (including New Lenders reasonably acceptable subject to the Administrative Agentclause (d) below) may from time to time agree that such Lenders shall incur Incur Incremental Revolving Commitments with respect to (which shall have the Tranche 1 Revolving Facility (“Tranche 1 Incremental effect of increasing the amount of the existing Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering to the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying (ix) the amount of the Incremental Revolving Commitments, (ii) the Revolving Facility with respect to which such Incremental Revolving Commitments will be incurred, and (iiiy) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, ,
(1) (Ai) the aggregate amount of (A) the Incremental Term Loans and Incremental Revolving Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.02 plus (B) the aggregate principal amount of Permitted Additional Debt Incurred under Section 6.01(p)(ii) shall not exceed, as of the date of Incurrence the Incremental Limit; provided that Incremental Term Loans shall not exceed $1,500,000,000 minus may be Incurred without regard to the Incremental Limit (so long as no Event of Default has occurred and is continuing) to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of incurrence of such Incremental Term Loans (or substantially concurrently therewith) to prepay any other outstanding principal amount of Pari Passu Indebtedness Incremental Term Loans;
(other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (Cii) no Incremental Revolving Commitments may be incurred Incurred if a Default or Event of Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, ,
(Diii) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers shall be in compliance with Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 any Incremental Revolving Commitment effected shall be on the same terms, pursuant to this paragraph the same documentation, and treated the same as the existing Revolving Facility (including with respect to maturity date thereof) and shall be in a minimum amount considered to be part of at least $100,000,000the Revolving Facility (it being understood that, if required to consummate an Incremental Revolving Commitment, (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretion.
(b) QVC and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (vx) the Applicable Rate for such Incremental Term Loans, (vi) Rates and Commitment Fee Rates on the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental existing Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans Facility may be incurred if a Default would be in existence immediately before increased and additional upfront or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans similar fees may be incurred so long as (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving pro forma effect payable to such Borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) after giving pro forma effect thereto and to any concurrent transactions, the Borrowers shall be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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 (ii) as of the date of the Borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Lenders providing such Incremental Term Loans) 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 Incremental Term Loans; Revolving Commitment and (2y) any Previously Absent Financial Maintenance Covenant may be added without any consent of any Person so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of the entire Revolving Facility);
(iv) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”4), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur Incremental Revolving time, request In- cremental Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may in- clude any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility with- out its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that (i) each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.05, the Issuing Bank (which approvals shall not be unreasona- xxx withheld, conditioned or delayed) and (ii) the aggregate principal amount of Incremental Revolving Commitment Activation Notice specifying Term A Loans permit- xxx to be incurred hereunder shall not exceed $250,000,000. Such notice shall set forth (i) the amount of the Incre- mental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effec- tive and (iii) whether such Incremental Facility is an Incremental Term A Facility.
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) except with respect to which any Escrow Incremental Term Loans until the assumption by the Borrower thereof, the Incremental Term Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations,
(iii) the scheduled final maturity date of any Incremental Term A Facility shall be no earlier than the Revolving Termination Date and the scheduled final maturity date of any other Incremental Term Facility shall be no earlier than the later of (x) 90 days following the Revolving Termination Date and (y) the scheduled final maturity date of any then outstanding Term Loans,
(iv) no Incremental Facility (other than the Term B-1 Term Loans incurred on the Term B-1 Effective Date and an Incremental Term A Facility) shall require scheduled amortization payments (excluding the final installment thereof) in excess of 1.00% per annum of the original aggregate principal amount thereof; and
(v) any Incremental Term Facility shall be on terms (other than pricing, amortization, maturi- ty, prepayment premiums and mandatory prepayments) and pursuant to documentation substantially similar to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facilities (x) shall have no financial maintenance covenants of a different type than the financial covenants set forth in Section 6.10, and no financial maintenance covenants that are more restric- tive than the financial covenants set forth in Section 6.10 and (y) shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable to the Re- volving Facility as determined in good faith by the Borrower unless, in each case of clauses (x) and (y) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements); (II) become applicable only after the Revolving Facility shall have matured or been termi- nated and any Term Loans existing at such date have been paid in full or (III) apply to Escrow Incremental Term Loans solely until the Escrow Assumption with respect thereto occurs; provided, however, with re- spect to any Incremental Term Loans, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrower, except that the All-in Yield in respect of any such Incremental Term Loans may exceed the All-in Yield in respect of the Term B-1 Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Rate (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B-1 Loans shall be in- creased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate ap- plicable to such Term B-1 Loans then outstanding.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended or amended and restated to the extent (but only to the extent) neces- sary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments will evidenced thereby as provided for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (includ- ing, without limitation, to provide for the establishment of Incremental Term Loans) and any such collateral and other documentation shall be incurreddeemed “Loan Documents” hereunder and may be memorialized in writing between the Administrative Agent and the Borrower and furnished to the other parties hereto.
(d) The Borrower may, by written notice to the Administrative Agent from time to time, request Es- crow Incremental Term Loans which shall be incurred by an Escrow Borrower. Such notice shall set forth (i) the amount of the Escrow Incremental Term Loans being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the then remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Escrow Incremental Term Loans are requested to be borrowed by the Escrow Borrower and (iii) the applicable identity of the Escrow Borrower. The Escrow Incremental Revolving Commitment Closing Date. Notwithstanding Term Loans shall be incurred by an Escrow Borrower; provided that:
(i) prior to the foregoingEscrow Assumption thereof, (1) the Escrow Incremental Term Loans shall be in- curred pursuant to and governed by loan documentation and escrow documentation, if any, separate from this Agreement and the other Loan Documents, which such loan documentation shall specify (A) the aggregate amount terms of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b)Escrow Assumption Agreement, (B) without limiting the foregoing clause (1)(A), terms of the aggregate amount Incremental Term Loans following the Escrow Assumption of Tranche 2 such Escrow Incremental Revolving Commitments shall not exceed $300,000,000, Term Loans and (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of that following the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder)Escrow Assumption, the Borrowers lenders thereunder shall agree to be in compliance with bound by this Agreement and the other Loan Documents as permitted to be amended by Section 6.10 2.02(c) and Section 9.02;
(E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2ii) unless otherwise agreed by the Administrative Agent, the administrative agent and es- crow agent, if any, for such Escrow Incremental Term Loans shall be the Administrative Agent; provided that if the Administrative Agent acts as administrative agent for such Escrow Incremental Term Loans, the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans shall receive (A) documentation and other information requested by the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including without limitation, the Act, in each case as requested at least three Business Days prior to the date on which such Escrow Incremental Term Loans are requested to become effective and (B) all documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans;
(iii) Escrow Incremental Term Loans shall not be deemed to be outstanding under this Agreement or any other Loan Document for any purposes hereof (including, without limitation, for purposes of any financial calculation, the definition of “Obligations,” the definition of “Required Lenders” or Section 7.01, 9.02 or 9.03 hereof) and the obligations with respect thereto shall not be recourse to the Borrower or any Restricted Subsidiary, in each case, unless and until the Escrow Assumption with respect thereto shall have occurred;
(iv) at the time of the Escrow Assumption (A) the conditions specified in clauses (b) and (e) of this Section 2.02 (other than the condition in 2.02(e)(ii) with respect to complying with 4.02(c)) shall be satisfied as if the Borrower was borrowing such Escrow Incremental Term Loans on the date of such Es- crow Assumption, (B) the Incremental Term Loan Commitments and/or Incremental Revolving Commitments plus such Escrow Incremental Term Loans then outstanding do not exceed the Incremental Amount at such time and (C) the aggregate principal amount of Incremental Term A Loans outstanding (including, if applicable, such Escrow Incremental Term Loans) incurred on or prior to such time do not exceed $250,000,000; and
(v) following any Escrow Assumption (A) each Tranche 1 Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan assumed by the Borrower shall be in a minimum amount of at least $100,000,000deemed outstanding under this Agreement as an Incremental Term Loan, (B) each Tranche 2 of the lenders of such Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan shall be in a minimum amount of at least $20,000,000 and deemed to be Lenders hereunder, (C) no more than four Escrow Incremental Revolving Commitment Activation Notices may Term Loans that were Eurocurrency Loans of a particular Borrowing shall initially be delivered Eurocurrency Loans of a Borrowing under this Agreement with an initial Interest Period equal to the then remaining Interest Period for such Borrowing under this Agreement (and with the same Eurocurrency Rate) and (D) Escrow Incremental Term Loans assumed by the Borrowers (in the aggregate) after the Closing Date. No existing Lender Borrower that were ABR Loans shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretioninitially be ABR Loans under this Agreement.
(be) QVC and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before Loan Commitment or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as Revolving Commitment shall become effective under this Section 2.02 unless (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or shall exist after giving pro forma effect to such Borrowing Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions the incurrence of Indebtedness thereunder and any substantially concurrent use of proceeds thereoftherefrom; provided, that in the event that any tranche of Incremental Facilities that are used to finance an acquisition permitted hereunder, to the extent the Incremental Lenders participating in such Incremental Facility agree, the foregoing clause (Ci) shall be tested at the time of the execution of the acquisition agreement related to such acquisition (provided, that such Incremental Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such Incremental Facility); (ii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); (iii) after giving pro forma effect thereto to such Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions, the Borrowers shall incurrence of Indebtedness thereunder (assuming such commitments are fully drawn on such date) and use of proceeds therefrom the Borrower would be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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) 6.10 as of the date of effectiveness last day of the applicable Limited Conditionality Acquisition Agreement and (ii) as of most recently ended Test Period only on the date of the Borrowing initial incurrence of (or commitment in respect of) such Indebtedness; and (iv) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(f) Upon each increase in the establishment of any Incremental Revolving Commitments pursuant to this Section 2.02, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental Revolving Commitments in respect of such increase, and each such Incremental Revolving 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 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 Lender (including each such Incremental Revolving Lender) will equal such Lender’s Revolving Commitment Percentage and 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 Incremental Term LoansRevolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, customary “Sungard” representations and warranties (reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such representations and warranties to increase), which prepayment or assignment shall be reasonably determined accompanied by accrued interest on the Revolving Loans being prepaid. The Administrative Agent and the Lenders providing such Incremental Term Loans) hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement 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, not apply to the incurrence of such Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase transactions effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Datepreceding sentence. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (Match Group, Inc.)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVC, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable to the Administrative Agent) may from time to time agree that such Lenders shall incur Incremental Revolving Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering to the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying (i) the amount of the Incremental Revolving Commitments, (ii) the Revolving Facility with respect to which such Incremental Revolving Commitments will be incurred, and (iii) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers shall be in compliance with Section 6.10 and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretion.
(ba) QVC and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving pro forma effect to such Borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) after giving pro forma effect thereto and to any concurrent transactions, the Borrowers shall be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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 (ii) as of the date of the Borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Lenders providing such Incremental Term Loans) 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 Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(cb) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(dc) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (QVC Inc)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that (i) each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.05, the Issuing Bank (which approvals shall not be unreasonably withheld, conditioned or delayed) and (ii) the aggregate principal amount of Incremental Revolving Commitment Activation Notice specifying Term A Loans permitted to be incurred hereunder shall not exceed $250,000,000. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective and (iii) whether such Incremental Facility is an Incremental Term A Facility.
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) except with respect to which any Escrow Incremental Term Loans until the assumption by the Borrower thereof, the Incremental Term Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations,
(iii) the scheduled final maturity date of any Incremental Term A Facility shall be no earlier than the Revolving Termination Date and the scheduled final maturity date of any other Incremental Term Facility shall be no earlier than the later of (x) 90 days following the Revolving Termination Date and (y) the scheduled final maturity date of any then outstanding Term Loans,
(iv) no Incremental Facility (other than the Term B-1 Term Loans incurred on the Term B-1 Effective Date and an Incremental Term A Facility) shall require scheduled amortization payments (excluding the final installment thereof) in excess of 1.00% per annum of the original aggregate principal amount thereof; and
(v) any Incremental Term Facility shall be on terms (other than pricing, amortization, maturity, prepayment premiums and mandatory prepayments) and pursuant to documentation substantially similar to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facilities (x) shall have no financial maintenance covenants of a different type than the financial covenants set forth in Section 6.10, and no financial maintenance covenants that are more restrictive than the financial covenants set forth in Section 6.10, (y) in the case of the first Incremental Term Facility to be incurred under this Agreement, shall not have negative covenants and/or default provisions that are more restrictive than those applicable to the Revolving Facility and (z) in the case of each other Incremental Term Facility,6.10 and (y) shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable to the Revolving Facility as determined in good faith by the Borrower unless, in each case of clauses (x), and (y) and (z) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements); (II) become applicable only after the Revolving Facility shall have matured or been terminated and any Term Loans existing at such date have been paid in full or (III) apply to Escrow Incremental Term Loans solely until the Escrow Assumption with respect thereto occurs; provided, however, with respect to any Incremental Term Loans, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrower, except that the All-in Yield in respect of any such Incremental Term Loans may exceed the All-in Yield in respect of the Term B-1 Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Rate (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term B-1 Loans then outstanding.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended or amended and restated 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 Commitments will evidenced thereby as provided for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (including, without limitation, to provide for the establishment of Incremental Term Loans) and any such collateral and other documentation shall be incurreddeemed “Loan Documents” hereunder and may be memorialized in writing between the Administrative Agent and the Borrower and furnished to the other parties hereto.
(d) The Borrower may, by written notice to the Administrative Agent from time to time, request Escrow Incremental Term Loans which shall be incurred by an Escrow Borrower. Such notice shall set forth (i) the amount of the Escrow Incremental Term Loans being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the then remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Escrow Incremental Term Loans are requested to be borrowed by the Escrow Borrower and (iii) the applicable identity of the Escrow Borrower. The Escrow Incremental Revolving Commitment Closing Date. Notwithstanding Term Loans shall be incurred by an Escrow Borrower; provided that:
(i) prior to the foregoingEscrow Assumption thereof, (1) the Escrow Incremental Term Loans shall be incurred pursuant to and governed by loan documentation and escrow documentation, if any, separate from this Agreement and the other Loan Documents, which such loan documentation shall specify (A) the aggregate amount terms of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b)Escrow Assumption Agreement, (B) without limiting the foregoing clause (1)(A), terms of the aggregate amount Incremental Term Loans following the Escrow Assumption of Tranche 2 such Escrow Incremental Revolving Commitments shall not exceed $300,000,000, Term Loans and (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of that following the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder)Escrow Assumption, the Borrowers lenders thereunder shall agree to be in compliance with bound by this Agreement and the other Loan Documents as permitted to be amended by Section 6.10 2.02(c) and Section 9.02 ;
(E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2ii) unless otherwise agreed by the Administrative Agent, the administrative agent and escrow agent, if any, for such Escrow Incremental Term Loans shall be the Administrative Agent; provided that if the Administrative Agent acts as administrative agent for such Escrow Incremental Term Loans, the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans shall receive (A) documentation and other information requested by the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including without limitation, the Act, in each case as requested at least three Business Days prior to the date on which such Escrow Incremental Term Loans are requested to become effective and (B) all documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans;
(iii) Escrow Incremental Term Loans shall not be deemed to be outstanding under this Agreement or any other Loan Document for any purposes hereof (including, without limitation, for purposes of any financial calculation, the definition of “Obligations,” the definition of “Required Lenders” or Section 7.01, 9.02 or 9.03 hereof) and the obligations with respect thereto shall not be recourse to the Borrower or any Restricted Subsidiary, in each case, unless and until the Escrow Assumption with respect thereto shall have occurred;
(iv) at the time of the Escrow Assumption (A) the conditions specified in clauses (b) and (e) of this Section 2.02 (other than the condition in 2.02(e)(ii) with respect to complying with 4.02(c)) shall be satisfied as if the Borrower was borrowing such Escrow Incremental Term Loans on the date of such Escrow Assumption, (B) the Incremental Term Loan Commitments and/or Incremental Revolving Commitments plus such Escrow Incremental Term Loans then outstanding do not exceed the Incremental Amount at such time and (C) the aggregate principal amount of Incremental Term A Loans outstanding (including, if applicable, such Escrow Incremental Term Loans) incurred on or prior to such time do not exceed $250,000,000; and
(v) following any Escrow Assumption (A) each Tranche 1 Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan assumed by the Borrower shall be in a minimum amount of at least $100,000,000deemed outstanding under this Agreement as an Incremental Term Loan, (B) each Tranche 2 of the lenders of such Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan shall be in a minimum amount of at least $20,000,000 and deemed to be Lenders hereunder, (C) no more than four Escrow Incremental Revolving Commitment Activation Notices may Term Loans that were Eurocurrency Loans of a particular Borrowing shall initially be delivered Eurocurrency Loans of a Borrowing under this Agreement with an initial Interest Period equal to the then remaining Interest Period for such Borrowing under this Agreement (and with the same Eurocurrency Rate) and (D) Escrow Incremental Term Loans assumed by the Borrowers (in the aggregate) after the Closing Date. No existing Lender Borrower that were ABR Loans shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretioninitially be ABR Loans under this Agreement.
(be) QVC and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before Loan Commitment or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as Revolving Commitment shall become effective under this Section 2.02 unless (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or shall exist after giving pro forma effect to such Borrowing Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions the incurrence of Indebtedness thereunder and any substantially concurrent use of proceeds thereoftherefrom; provided, that in the event that any tranche of Incremental Facilities that are used to finance an acquisition permitted hereunder, to the extent the Incremental Lenders participating in such Incremental Facility agree, the foregoing clause (Ci) shall be tested at the time of the execution of the acquisition agreement related to such acquisition (provided, that such Incremental Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such Incremental Facility); (ii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); (iii) after giving pro forma effect thereto to such Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions, the Borrowers shall incurrence of Indebtedness thereunder (assuming such commitments are fully drawn on such date) and use of proceeds therefrom the Borrower would be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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) 6.10 as of the date of effectiveness last day of the applicable Limited Conditionality Acquisition Agreement and (ii) as of most recently ended Test Period only on the date of the Borrowing initial incurrence of (or commitment in respect of) such Indebtedness; and (iv) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(f) Upon each increase in the establishment of any Incremental Revolving Commitments pursuant to this Section 2.02, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental Revolving Commitments in respect of such increase, and each such Incremental Revolving 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 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 Lender (including each such Incremental Revolving Lender) will equal such Lender’s Revolving Commitment Percentage and 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 Incremental Term LoansRevolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, customary “Sungard” representations and warranties (reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such representations and warranties to increase), which prepayment or assignment shall be reasonably determined accompanied by accrued interest on the Revolving Loans being prepaid. The Administrative Agent and the Lenders providing such Incremental Term Loans) hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement 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, not apply to the incurrence of such Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase transactions effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Datepreceding sentence. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Samples: Incremental Assumption Agreement and Amendment No. 1 (Match Group, Inc.)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that (i) each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.05, the Issuing Bank (which approvals shall not be unreasonably withheld, conditioned or delayed) and (ii) the aggregate principal amount of Incremental Revolving Commitment Activation Notice specifying Term A Loans permitted to be incurred hereunder shall not exceed $250,000,000. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective and (iii) whether such Incremental Facility is an Incremental Term A Facility.
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) except with respect to which any Escrow Incremental Term Loans until the assumption by the Borrower thereof, the Incremental Term Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations,
(iii) the scheduled final maturity date of any Incremental Term A Facility shall be no earlier than the Revolving Termination Date and the scheduled final maturity date of any other Incremental Term Facility shall be no earlier than the later of (x) 90 days following the Revolving Termination Date and (y) the scheduled final maturity date of any then outstanding Term Loans,
(iv) no Incremental Facility (other than the Term B-1 Term Loans incurred on the Term B-1 Effective Date and an Incremental Term A Facility) shall require scheduled amortization payments (excluding the final installment thereof) in excess of 1.00% per annum of the original aggregate principal amount thereof; and
(v) any Incremental Term Facility shall be on terms (other than pricing, amortization, maturity, prepayment premiums and mandatory prepayments) and pursuant to documentation substantially similar to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facilities (x) shall have no financial maintenance covenants of a different type than the financial covenants set forth in Section 6.10, and no financial maintenance covenants that are more restrictive than the financial covenants set forth in Section 6.10 and (y) shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable to the Revolving Facility as determined in good faith by the Borrower unless, in each case of clauses (x) and (y) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements); (II) become applicable only after the Revolving Facility shall have matured or been terminated and any Term Loans existing at such date have been paid in full or (III) apply to Escrow Incremental Term Loans solely until the Escrow Assumption with respect thereto occurs; provided, however, with respect to any Incremental Term Loans, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrower, except that the All-in Yield in respect of any such Incremental Term Loans may exceed the All-in Yield in respect of the Term B-1 Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Rate (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBOEurocurrency Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term B-1 Loans then outstanding.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended or amended and restated 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 Commitments will evidenced thereby as provided for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (including, without limitation, to provide for the establishment of Incremental Term Loans) and any such collateral and other documentation shall be incurreddeemed “Loan Documents” hereunder and may be memorialized in writing between the Administrative Agent and the Borrower and furnished to the other parties hereto.
(d) The Borrower may, by written notice to the Administrative Agent from time to time, request Escrow Incremental Term Loans which shall be incurred by an Escrow Borrower. Such notice shall set forth (i) the amount of the Escrow Incremental Term Loans being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the then remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Escrow Incremental Term Loans are requested to be borrowed by the Escrow Borrower and (iii) the applicable identity of the Escrow Borrower. The Escrow Incremental Revolving Commitment Closing Date. Notwithstanding Term Loans shall be incurred by an Escrow Borrower; provided that:
(i) prior to the foregoingEscrow Assumption thereof, (1) the Escrow Incremental Term Loans shall be incurred pursuant to and governed by loan documentation and escrow documentation, if any, separate from this Agreement and the other Loan Documents, which such loan documentation shall specify (A) the aggregate amount terms of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b)Escrow Assumption Agreement, (B) without limiting the foregoing clause (1)(A), terms of the aggregate amount Incremental Term Loans following the Escrow Assumption of Tranche 2 such Escrow Incremental Revolving Commitments shall not exceed $300,000,000, Term Loans and (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of that following the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder)Escrow Assumption, the Borrowers lenders thereunder shall agree to be in compliance with bound by this Agreement and the other Loan Documents as permitted to be amended by Section 6.10 2.02(c) and Section 9.02;
(E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2ii) unless otherwise agreed by the Administrative Agent, the administrative agent and escrow agent, if any, for such Escrow Incremental Term Loans shall be the Administrative Agent; provided that if the Administrative Agent acts as administrative agent for such Escrow Incremental Term Loans, the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans shall receive (A) documentation and other information requested by the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including without limitation, the Act, in each case as requested at least three Business Days prior to the date on which such Escrow Incremental Term Loans are requested to become effective and (B) all documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans;
(iii) Escrow Incremental Term Loans shall not be deemed to be outstanding under this Agreement or any other Loan Document for any purposes hereof (including, without limitation, for purposes of any financial calculation, the definition of “Obligations,” the definition of “Required Lenders” or Section 7.01, 9.02 or 9.03 hereof) and the obligations with respect thereto shall not be recourse to the Borrower or any Restricted Subsidiary, in each case, unless and until the Escrow Assumption with respect thereto shall have occurred;
(iv) at the time of the Escrow Assumption (A) the conditions specified in clauses (b) and (e) of this Section 2.02 (other than the condition in 2.02(e)(ii) with respect to complying with 4.02(c)) shall be satisfied as if the Borrower was borrowing such Escrow Incremental Term Loans on the date of such Escrow Assumption, (B) the Incremental Term Loan Commitments and/or Incremental Revolving Commitments plus such Escrow Incremental Term Loans then outstanding do not exceed the Incremental Amount at such time and (C) the aggregate principal amount of Incremental Term A Loans outstanding (including, if applicable, such Escrow Incremental Term Loans) incurred on or prior to such time do not exceed $250,000,000; and
(v) following any Escrow Assumption (A) each Tranche 1 Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan assumed by the Borrower shall be in a minimum amount of at least $100,000,000deemed outstanding under this Agreement as an Incremental Term Loan, (B) each Tranche 2 of the lenders of such Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan shall be in a minimum amount of at least $20,000,000 and deemed to be Lenders hereunder, (C) no more than four Escrow Incremental Revolving Commitment Activation Notices may Term Loans that were Eurocurrency Loans of a particular Borrowing shall initially be delivered Eurocurrency Loans of a Borrowing under this Agreement with an initial Interest Period equal to the then remaining Interest Period for such Borrowing under this Agreement (and with the same Eurocurrency Rate) and (D) Escrow Incremental Term Loans assumed by the Borrowers (in the aggregate) after the Closing Date. No existing Lender Borrower that were ABR Loans shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretioninitially be ABR Loans under this Agreement.
(be) QVC and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before Loan Commitment or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as Revolving Commitment shall become effective under this Section 2.02 unless (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or shall exist after giving pro forma effect to such Borrowing Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions the incurrence of Indebtedness thereunder and any substantially concurrent use of proceeds thereoftherefrom; provided, that in the event that any tranche of Incremental Facilities that are used to finance an acquisition permitted hereunder, to the extent the Incremental Lenders participating in such Incremental Facility agree, the foregoing clause (Ci) shall be tested at the time of the execution of the acquisition agreement related to such acquisition (provided, that such Incremental Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such Incremental Facility); (ii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); (iii) after giving pro forma effect thereto to such Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions, the Borrowers shall incurrence of Indebtedness thereunder (assuming such commitments are fully drawn on such date) and use of proceeds therefrom the Borrower would be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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) 6.10 as of the date of effectiveness last day of the applicable Limited Conditionality Acquisition Agreement and (ii) as of most recently ended Test Period only on the date of the Borrowing initial incurrence of (or commitment in respect of) such Indebtedness; and (iv) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(f) Upon each increase in the establishment of any Incremental Revolving Commitments pursuant to this Section 2.02, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental Revolving Commitments in respect of such increase, and each such Incremental Revolving 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 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 Lender (including each such Incremental Revolving Lender) will equal such Lender’s Revolving Commitment Percentage and 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 Incremental Term LoansRevolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, customary “Sungard” representations and warranties (reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such representations and warranties to increase), which prepayment or assignment shall be reasonably determined accompanied by accrued interest on the Revolving Loans being prepaid. The Administrative Agent and the Lenders providing such Incremental Term Loans) hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement 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, not apply to the incurrence of such Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase transactions effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Datepreceding sentence. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (Match Group, Inc.)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying Agent, each Issuing Bank and the Swing Line Lender (which approval shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent) and (ii) the Revolving Facility with respect to date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments will be incurredare requested to become effective.
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, and (iiiwithout limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of Term Loans and/or Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness Commitments; provided that:
(other than the Existing Notesi) incurred pursuant to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms (other than upfront fees) and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) the Incremental Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations, any Incremental Revolving Commitment shall have the same payment priority as the Revolving Commitments and any Incremental Term Facility shall have the same payment priority as the Term B Facility,
(iii) (a) the scheduled final maturity date of any Incremental Term Facility shall be no earlier than the Term B Maturity Date and (b) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Facility,
(iv) no Incremental Term Facility shall participate on a greater than pro rata basis with the Term B Facility in any mandatory prepayment
(v) any Incremental Facility shall be on terms (other than pricing, amortization, maturity, prepayment premiums and mandatory prepayments) and pursuant to documentation substantially similar to the Term B Facility or Revolving Facility, as applicable, or otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facilities (x) shall have no financial maintenance covenants of a different type than the Financial Covenants, and no financial maintenance covenants that are more restrictive than the Financial Covenants and (y) shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable to the Revolving Facility as determined in good faith by the Borrower unless, in each case of clauses (x) and (y) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements); or (II) become applicable only after the Revolving Facility shall have matured or been terminated and any Term Loans existing at such date have been paid in full; provided, however, with respect to any Incremental Term Loans, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrower, except that the All-in Yield in respect of any such Incremental Term Loans may exceed the All-in Yield in respect of the Term B Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Rate (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed $300,000,0000.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the adjusted LIBOR rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term B Loans then outstanding; and
(Cvi) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or established if, after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use thereto, the aggregate principal amount of the proceeds thereofRevolving Commitments, (D) after giving pro forma effect thereto (assuming the full drawing of such Extended Revolving Commitments, Incremental Revolving Commitments and after giving effect or Replacement Revolving Facility Commitments would exceed Consolidated EBITDA (determined on a Pro Forma Basis) for the most recent Test Period for which financial statements have been delivered pursuant to other concurrent transactions permitted hereunder), Section 5.01; provided that the Borrowers Lenders providing Incremental Revolving Commitments shall be fully protected (and extensions of credit thereunder shall be included in compliance with Section 6.10 and (EPriority Payment Obligations) in relying on a certificate of a Responsible Officer of the representations and warranties Borrower as to whether the limitation set forth in Article III this clause (vi) is exceeded.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be true amended or amended and correct in all material respects restated to the extent (or in all respects if qualified by materialitybut only to the extent) immediately prior to, necessary to reflect the existence and after giving effect to, terms of the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) after the Closing Date. No existing Lender shall have any obligation to incur any Term Loan Commitments and/or Incremental Revolving Commitments unless it agrees evidenced thereby as provided for in Section 9.02. Any amendment or amendment and restatement to do so this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (including, without limitation, to provide for the establishment of Incremental Term Loans) and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in its sole discretionwriting between the Administrative Agent and the Borrower and furnished to the other parties hereto.
(bd) QVC and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant subject to Section 6.01(b)1.09, (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before Loan Commitment or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as Revolving Commitment shall become effective under this Section 2.02 unless (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or shall exist after giving pro forma effect to such Borrowing Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions the incurrence of Indebtedness thereunder and any substantially concurrent use of proceeds thereof, therefrom; (Cii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); (iii) after giving pro forma effect thereto to such Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions, the Borrowers shall incurrence of Indebtedness thereunder (assuming such commitments are fully drawn on such date) and use of proceeds therefrom the Borrower would be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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) 6.10 as of the date of effectiveness last day of the applicable Limited Conditionality Acquisition Agreement and (ii) as of most recently ended Test Period only on the date of the Borrowing initial incurrence of (or commitment in respect of) such Indebtedness and (iv) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(e) Upon each increase in the establishment of any Incremental Revolving Commitments pursuant to this Section 2.02, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental Revolving Commitments in respect of such increase, and each such Incremental Revolving 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 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 Lender (including each such Incremental Revolving Lender) will equal such Lender’s Revolving Commitment Percentage and 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 Incremental Term LoansRevolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, customary “Sungard” representations and warranties (reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such representations and warranties to increase), which prepayment or assignment shall be reasonably determined accompanied by accrued interest on the Revolving Loans being prepaid. The Administrative Agent and the Lenders providing such Incremental Term Loans) hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement 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, not apply to the incurrence of such Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase transactions effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Datepreceding sentence. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Incremental Revolving Commitments and Incremental Term Loans. (a) QVCThe Borrower may, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, and one or more Lenders (including New Lenders reasonably acceptable by written notice to the Administrative Agent) may Agent from time to time agree that such Lenders shall incur time, request Incremental Revolving Term Loan Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 and/or Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) or Incremental Revolving Commitments are established (except, in each case, as set forth in the final paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion; provided that (i) each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.05, the Issuing Bank (which approvals shall not be unreasonably withheld, conditioned or delayed) and (ii) the aggregate principal amount of Incremental Revolving Commitment Activation Notice specifying Term A Loans permitted to be incurred hereunder shall not exceed $250,000,000. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving CommitmentsCommitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective and (iii) whether such Incremental Facility is an Incremental Term A Facility.
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Commitments; provided that:
(i) any Incremental Revolving Commitments shall have the same terms as the Revolving Commitments, shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Termination Date and shall be on the same terms and pursuant to the same documentation applicable to the Revolving Commitments,
(ii) except with respect to which any Escrow Incremental Term Loans until the assumption by the Borrower thereof, the Incremental Term Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations,
(iii) the scheduled final maturity date of any Incremental Term A Facility shall be no earlier than the Revolving Termination Date and the scheduled final maturity date of any other Incremental Term Facility shall be no earlier than the later of (x) 90 days following the Revolving Termination Date and (y) the scheduled final maturity date of any then outstanding Term Loans,
(iv) no Incremental Facility (other than the Term B-1 Loans incurred on the Term B-1 Effective Date and an Incremental Term A Facility) shall require scheduled amortization payments (excluding the final installment thereof) in excess of 1.00% per annum of the original aggregate principal amount thereof; and
(v) any Incremental Term Facility shall be on terms (other than pricing, amortization, maturity, prepayment premiums and mandatory prepayments) and pursuant to documentation substantially similar to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facilities (x) shall have no financial maintenance covenants of a different type than the financial covenants set forth in Section 6.10, and no financial maintenance covenants that are more restrictive than the financial covenants set forth in Section 6.10 and (y) shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable to the Revolving Facility as determined in good faith by the Borrower unless, in each case of clauses (x) and (y) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements); (II) become applicable only after the Revolving Facility shall have matured or been terminated and any Term Loans existing at such date have been paid in full or (III) apply to Escrow Incremental Term Loans solely until the Escrow Assumption with respect thereto occurs; provided, however, with respect to any Incremental Term Loans, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrower, except that the All-in Yield in respect of any such Incremental Term Loans may exceed the All-in Yield in respect of the Term B-1 Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Rate (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term B-1 Loans then outstanding.
(c) Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended or amended and restated 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 Commitments will evidenced thereby as provided for in Section 9.02. Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (including, without limitation, to provide for the establishment of Incremental Term Loans) and any such collateral and other documentation shall be incurreddeemed “Loan Documents” hereunder and may be memorialized in writing between the Administrative Agent and the Borrower and furnished to the other parties hereto.
(d) The Borrower may, by written notice to the Administrative Agent from time to time, request Escrow Incremental Term Loans which shall be incurred by an Escrow Borrower. Such notice shall set forth (i) the amount of the Escrow Incremental Term Loans being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the then remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Escrow Incremental Term Loans are requested to be borrowed by the Escrow Borrower and (iii) the applicable identity of the Escrow Borrower. The Escrow Incremental Revolving Commitment Closing Date. Notwithstanding Term Loans shall be incurred by an Escrow Borrower; provided that:
(i) prior to the foregoingEscrow Assumption thereof, (1) the Escrow Incremental Term Loans shall be incurred pursuant to and governed by loan documentation and escrow documentation, if any, separate from this Agreement and the other Loan Documents, which such loan documentation shall specify (A) the aggregate amount terms of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b)Escrow Assumption Agreement, (B) without limiting the foregoing clause (1)(A), terms of the aggregate amount Incremental Term Loans following the Escrow Assumption of Tranche 2 such Escrow Incremental Revolving Commitments shall not exceed $300,000,000, Term Loans and (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of that following the proceeds thereof, (D) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder)Escrow Assumption, the Borrowers lenders thereunder shall agree to be in compliance with bound by this Agreement and the other Loan Documents as permitted to be amended by Section 6.10 2.02(c) and Section 9.02;
(E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2ii) unless otherwise agreed by the Administrative Agent, the administrative agent and escrow agent, if any, for such Escrow Incremental Term Loans shall be the Administrative Agent; provided that if the Administrative Agent acts as administrative agent for such Escrow Incremental Term Loans, the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans shall receive (A) documentation and other information requested by the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including without limitation, the Act, in each case as requested at least three Business Days prior to the date on which such Escrow Incremental Term Loans are requested to become effective and (B) all documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent in its capacity as administrative agent for such Escrow Incremental Term Loans;
(iii) Escrow Incremental Term Loans shall not be deemed to be outstanding under this Agreement or any other Loan Document for any purposes hereof (including, without limitation, for purposes of any financial calculation, the definition of “Obligations,” the definition of “Required Lenders” or Section 7.01, 9.02 or 9.03 hereof) and the obligations with respect thereto shall not be recourse to the Borrower or any Restricted Subsidiary, in each case, unless and until the Escrow Assumption with respect thereto shall have occurred;
(iv) at the time of the Escrow Assumption (A) the conditions specified in clauses (b) and (e) of this Section 2.02 (other than the condition in 2.02(e)(ii) with respect to complying with 4.02(c)) shall be satisfied as if the Borrower was borrowing such Escrow Incremental Term Loans on the date of such Escrow Assumption, (B) the Incremental Term Loan Commitments and/or Incremental Revolving Commitments plus such Escrow Incremental Term Loans then outstanding do not exceed the Incremental Amount at such time and (C) the aggregate principal amount of Incremental Term A Loans outstanding (including, if applicable, such Escrow Incremental Term Loans) incurred on or prior to such time do not exceed $250,000,000; and
(v) following any Escrow Assumption (A) each Tranche 1 Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan assumed by the Borrower shall be in a minimum amount of at least $100,000,000deemed outstanding under this Agreement as an Incremental Term Loan, (B) each Tranche 2 of the lenders of such Escrow Incremental Revolving Commitment effected pursuant to this paragraph Term Loan shall be in a minimum amount of at least $20,000,000 and deemed to be Lenders hereunder, (C) no more than four Escrow Incremental Revolving Commitment Activation Notices may Term Loans that were Eurocurrency Loans of a particular Borrowing shall initially be delivered Eurocurrency Loans of a Borrowing under this Agreement with an initial Interest Period equal to the then remaining Interest Period for such Borrowing under this Agreement (and with the same Eurocurrency Rate) and (D) Escrow Incremental Term Loans assumed by the Borrowers (in the aggregate) after the Closing Date. No existing Lender Borrower that were ABR Loans shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretioninitially be ABR Loans under this Agreement.
(be) QVC and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before Loan Commitment or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as Revolving Commitment shall become effective under this Section 2.02 unless (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or shall exist after giving pro forma effect to such Borrowing Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions the incurrence of Indebtedness thereunder and any substantially concurrent use of proceeds thereoftherefrom; provided, that in the event that any tranche of Incremental Facilities that are used to finance an acquisition permitted hereunder, to the extent the Incremental Lenders participating in such Incremental Facility agree, the foregoing clause (Ci) shall be tested at the time of the execution of the acquisition agreement related to such acquisition (provided, that such Incremental Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such Incremental Facility); (ii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); (iii) after giving pro forma effect thereto to such Incremental Term Loan Commitment or Incremental Revolving Commitment and to any concurrent transactions, the Borrowers shall incurrence of Indebtedness thereunder (assuming such commitments are fully drawn on such date) and use of proceeds therefrom the Borrower would be in compliance with Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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) 6.10 as of the date of effectiveness last day of the applicable Limited Conditionality Acquisition Agreement and (ii) as of most recently ended Test Period only on the date of the Borrowing initial incurrence of (or commitment in respect of) such Indebtedness; and (iv) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(f) Upon each increase in the establishment of any Incremental Revolving Commitments pursuant to this Section 2.02, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender providing a portion of the Incremental Revolving Commitments in respect of such increase, and each such Incremental Revolving 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 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 Lender (including each such Incremental Revolving Lender) will equal such Lender’s Revolving Commitment Percentage and 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 Incremental Term LoansRevolving Commitments either be prepaid from the proceeds of additional Revolving Loans made hereunder or assigned to an Incremental Revolving Lender (in each case, customary “Sungard” representations and warranties (reflecting such Incremental Revolving Commitments, such that Revolving Loans are held ratably in accordance with each Lender’s pro rata share, after giving effect to such representations and warranties to increase), which prepayment or assignment shall be reasonably determined accompanied by accrued interest on the Revolving Loans being prepaid. The Administrative Agent and the Lenders providing such Incremental Term Loans) hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement 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, not apply to the incurrence of such Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase transactions effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Datepreceding sentence. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Samples: Incremental Assumption Agreement (Match Group, Inc.)
Incremental Revolving Commitments and Incremental Term Loans. (a) QVC, with respect to the Tranche 1 Revolving Facility, and QVC and zulily, with respect to the Tranche 2 Revolving Facility, The Borrower and one or more Lenders (including New Lenders reasonably acceptable to the Administrative Agent) may from time to time agree that such Lenders shall incur Incremental Revolving Commitments with respect to the Tranche 1 Revolving Facility (“Tranche 1 Incremental Revolving Commitments”) or the Tranche 2 Revolving Facility (“Tranche 2 Incremental Revolving Commitments”), as applicable, by executing and delivering to the Administrative Agent an Incremental Revolving Commitment Activation Notice specifying (i) the amount of the Incremental Revolving Commitments, Commitments and (ii) the Revolving Facility with respect to which such Incremental Revolving Commitments will be incurred, and (iii) the applicable Incremental Revolving Commitment Closing Date. Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 1,000,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) without limiting the foregoing clause (1)(A), the aggregate amount of Tranche 2 Incremental Revolving Commitments shall not exceed $300,000,000, (C) no Incremental Revolving Commitments may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof, (DC) after giving pro forma effect thereto (assuming the full drawing of such Incremental Revolving Commitments and after giving effect to other concurrent transactions permitted hereunder), the Borrowers Consolidated Leverage Ratio shall be in compliance with less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10 and (ED) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Revolving Commitments, and (2) unless otherwise agreed by the Administrative Agent, (A) each Tranche 1 Incremental Revolving Commitment increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000, 100,000,000 and (B) each Tranche 2 Incremental Revolving Commitment effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (C) no more than four Incremental Revolving Commitment Activation Notices may be delivered by the Borrowers (in the aggregate) Borrower after the Closing Date. No existing Lender shall have any obligation to incur any Incremental Revolving Commitments unless it agrees to do so in its sole discretion.
(b) QVC The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.07(a), (v) the Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms (including mandatory prepayment provisions, if any) applicable to such Incremental Term Loans acceptable to QVC the Borrower and the Administrative Agent that are consistent with the terms of this Section 2.02(b) and Section 2.07(a). Notwithstanding the foregoing, (1) (A) the aggregate amount of Incremental Revolving Commitments plus the aggregate amount of Incremental Term Loans shall not exceed $1,500,000,000 1,000,000,000 minus the outstanding principal amount of Pari Passu Indebtedness (other than the Existing Notes) incurred pursuant to Section 6.01(b), (B) no Incremental Term Loans may be incurred if a Default would be in existence immediately before or after giving pro forma effect thereto and to any concurrent transactions and any substantially concurrent use of the proceeds thereof; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), such Incremental Term Loans may be incurred so long as (i) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation and (ii) as of the date of the Borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Article VII is in existence immediately before or after giving pro forma effect to such Borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) after giving pro forma effect thereto and to any concurrent transactions, the Borrowers Consolidated Leverage Ratio shall be in compliance with less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10, (D) the covenants and events of default applicable to any Incremental Term Loan shall be no more favorable to the Incremental Term Lenders (or more restrictive on QVC the Borrower and its Restricted Subsidiaries) than those applicable to the Revolving Loans and (E) 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) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans; provided that, with respect to any Acquisition-Related Incremental Term Loans, such Incremental Term Loans may be incurred so long as (i) 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 (ii) as of the date of the Borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Lenders providing such Incremental Term Loans) 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 Incremental Term Loans; and (2) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Activation Notices may be delivered by QVC the Borrower after the Closing Date. No existing Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) or 2.02(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, 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 this Agreement and the other Loan Credit Documents.
(d) With respect to Incremental Revolving Commitments, each Lender that is acquiring an Incremental Revolving Commitment for a Revolving Facility on an Incremental Revolving Commitment Closing Date shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the Revolving Lenders in such Revolving Facility (other than such Lender and the other Lenders acquiring an Incremental Revolving Commitment) outstanding immediately prior to such Incremental Revolving Commitment Closing Date, so that, after giving effect thereto, each Revolving Lender in such Revolving Facility (including each Lender that is acquiring an Incremental Revolving Commitment) holds its Revolving Commitment Percentage of the Revolving Loans outstanding under such Revolving Facility after giving effect to such Incremental Revolving Commitment on such Incremental Revolving Commitment Closing Date. If there is a new Revolving Borrowing under such Revolving Facility on such Incremental Revolving Commitment Closing Date, the Revolving Lenders in such Revolving Facility after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01.
Appears in 1 contract
Samples: Credit Agreement (QVC Inc)
